Lal Lal Wind Farms Nom Co Pty Ltd v Vestas Australian Wind Technology Pty Ltd (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST

S ECI 2020 03894

LAL LAL WIND FARMS NOM CO PTY LTD (ACN 625 768 774) (as agent for the Lal Lal Wind Farms Partnership)	Plaintiff
v
VESTAS – AUSTRALIAN WIND TECHNOLOGY PTY LTD (ACN 089 653 878)	First Defendant
and
ZENVIRON PTY LTD (ACN 612 344 313)	Second Defendant
and
VESTAS WIND SYSTEMS A/S	Third Defendant

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2021
DATE OF RULING:	10 November 2021
CASE MAY BE CITED AS:	Lal Lal Wind Farms Nom Co Pty Ltd v Vestas – Australian Wind Technology Pty Ltd & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 733

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LEGAL PRACTITIONERS - Application by defendants to restrain law firm from continuing to act for the plaintiff – Alleged interference by Principal with performance of independent Certification Role by Principal’s Representative under a construction contract – Private communications between the Principal’s Representative and the law firm relating to the Certification Role – Analysis of pleadings – Highly unlikely any solicitor from the firm will be a witness – No material reputational risk on part of the law firm – Any financial risk to the law firm highly contingent and low – No proper basis for exercise of jurisdiction to restrain – Dugan v Process Holdings Pty Ltd [2021] VSC 555 applied – Kane Constructions Pty Ltd v Sopov [2005] VSC 237; (2006) 22 BCL 92 cited – Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, Mitchell v Burrell [2008] NSWSC 772 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Batt QC with Mr B Mason	Herbert Smith Freehills
For the Defendants	Mr J Rush RFD QC with Mr N Pane QC and Mr M Johnston and Ms G Yates	Pinsent Masons

TABLE OF CONTENTS

Background to the application........................................................................................................ 1

The application................................................................................................................................... 6

The issues on the pleadings – an overview................................................................................... 7

The Certification Role and the requirement for impartiality................................................... 9

The principles to be applied on the application........................................................................ 11

The orders sought on the application.......................................................................................... 15

Submissions on behalf of the Contractor.................................................................................... 15

Submissions on behalf of the Principal...................................................................................... 24

Issues on the pleadings relevant to the restraint application................................................. 29

Consideration.................................................................................................................................... 39

Disposition........................................................................................................................................ 49

HIS HONOUR:

Background to the application

The plaintiff, Lal Lal Wind Farms Nom Co Pty Ltd as Agent for the Lal Lal Wind Farms Partnership, and the first and second defendants, Vestas – Australian Wind Technology Pty Ltd and Zenviron Pty Ltd, are parties to an engineering procurement and construction contract dated 27 April 2018 for the Lal Lal Wind Farm project in Victoria (‘the EPC Contract’).[1] Under the EPC Contract, the plaintiff is the Principal, the first and second defendants are the Contractor and the third defendant, Vestas Wind Systems A/S, is guarantor of the obligations of the Contractor.
[1]Defendants, Affidavit of Matthew Edward Croagh, dated 19 August 2021, exhibit “MEC-44”, being the Affidavit of Matthew Edward Croagh sworn 3 August 2020, with the EPC Contract at exhibit “MEC-1” to that Affidavit.

The EPC Contract comprises:[2]

(a) an agreement dated 27 April 2018 between the Contractor and the Principal in its capacity as trustee for the Lal Lal Wind Farms Asset Trust entitled ‘Engineering, procurement, and construction contract for the Lal Lal Wind Farm’ (‘Agreement’); and

(b) an agreement dated 15 June 2018 between the Contractor, the Principal and others entitled ‘Novation and Amendment Deed – EPC Contract’.

[2]References to clauses of the EPC Contract are references to clauses of the agreement unless otherwise specified. Where capitalised terms are used without definition in these reasons, those terms are used in the sense defined in the EPC Contract.

The work to be performed under the EPC Contract has two components, the Yendon works and the Elaine works. The Contractor was required to achieve Practical Completion of the of the Yendon works by 24 July 2019 and of the Elaine works by 19 September 2019.

On 27 April 2018, the parties entered into an operation and maintenance agreement in relation to the Lal Lal Wind Farms (‘O&M Agreement’). Works under the O&M Agreement commenced on around 27 May 2019. The services required include:
(a)scheduled maintenance activities;
(b)unscheduled maintenance activities; and
(c)planned upgrade works as necessary for existing plant, equipment and software. Where possible these are performed at times consistent with scheduled maintenance activities.
Neither date for Practical Completion specified in the EPC Contract has been achieved and the works under the EPC Contract remain on foot. Although that is the case, the Lal Lal Wind Farms have generated electricity since mid-2019.

The EPC Contract provides for a ‘Principal’s Representative’ who, amongst other things, has the responsibility to determine various matters described as the ‘Certification Role’ in clause 1.1 of the EPC Contract (‘the Certification Role’).

Clause 31 of the EPC Contract is concerned with the Principal’s Representative. By clause 31.1(a), the Principal may from time to time appoint an individual as the Principal’s Representative to exercise any functions of the Principal under the Agreement. By clause 31.1(c), the Principal’s Representative may act in its absolute discretion as the agent of the Principal. An act or omission of the Principal’s Representative is deemed to be an act or omission of the Principal except where the Principal’s Representative is performing a Certification Role (according to clause 31.1(g)(1)).

Clause 31.2 concerns the Certification Role of the Principal’s Representative. It provides that:

When performing a Certification Role, the Principal’s Representative must act honestly, reasonably and make fair determinations in accordance with the Agreement.

The Certification Role is defined relevantly to include the following:

the responsibility of the Principal’s Representative to determine:
…

(3)the valuation of Variations under clause 12.4(b)(3);
…

(5)extensions of time under clause 13.3(f);
(6)the value of any Delay Costs under clause 13.10(a);
…

(8)whether Practical Completion – Elaine and Practical Completion – Yendon have been achieved in accordance with clause 21.2;
(9)whether Final Completion has been achieved in accordance with clause 21.3(c).

Felix Rohde of RES Australia Pty Ltd was appointed by the Principal as the Principal’s Representative under the EPC Contract effective from 25 August 2018.[3]
[3]Defendants, Affidavit of Matthew Edward Croagh, dated 19 August 2021, [12].

The Contractor has made a number of extension of time (‘EOT’) claims under the EPC Contract. The Principal’s Representative has determined that the Contractor is not entitled to any extensions of time to the dates for Practical Completion.

On 4 August 2020, the Contractor made an application by originating motion for pre-action discovery by the Principal of all documents passing between the Principal, including solicitors and other persons acting on behalf of the Principal, and the Principal’s Representative in connection with the Certification Role. The originating motion also sought orders restraining the Principal, and any person acting on its behalf, including solicitors, from communicating privately in connection with the exercise of the Principal’s Representative’s Certification Role under the EPC Contract.

The application for pre-action discovery was dismissed.[4] The injunction application was resolved during the course of the hearing. The Principal by its counsel undertook to the Court as follows:

The defendant undertakes to the Court that it, and any person acting on its behalf including its solicitors, will not communicate privately with the Principal’s Representative in connection with the exercise hereafter of the Principal’s Representative’s Certification Role under the EPC Contract.[5]

[4]Vestas – Australian Wind Technology Pty Ltd v Lal Lal Wind Farm Nom Co Pty Ltd [2020] VSC 554.

[5]Ibid, [58].

The decision on the pre-action discovery application was handed down on 1 September 2020.[6]
[6]Ibid.

On 9 October 2020, the Principal commenced these proceedings alleging that the Contractor has failed to reach Practical Completion of the works by the dates for Practical Completion under the EPC Contract and that the Contractor is liable to pay Delay Liquidated Damages. The Principal claimed Delay Liquidated Damages in the sum of $15,456,850.27.

After this proceeding was issued, there was an interlocutory hearing in which the Principal sought to restrain the Contractor from taking action of which the Contractor gave notice on 1 December 2020. The Contractor notified the Principal:

(a)that it considered ‘the continued operation of the wind turbine generators (‘WTGs’) is interfering with and/or limiting the Contractor’s ability to comply with its obligations under the EPC Contract’; and
(b)of its intention to place a 0MW constraint at Elaine and Yendon, and to put the Lal Lal Wind Farms’ WTGs into pause mode from 9.00 am the next morning (2 December 2020).

The practical effect of the course proposed by the Contractor, if implemented, would have been that the wind turbine generators (‘WTGs’) would not generate any electricity for the duration of the period in which the Contractor’s constraint remained in place.

On 18 December 2020 Stynes J made orders, in substance, restraining the Contractor, until further order, from constraining in any way the operation of the WTGs and the Lal Lal Wind Farms, and from putting such WTGs into ‘pause’ mode.[7]
[7]Lal Lal Wind Farms Nom Co Pty Ltd v Vestas – Australian Wind Technology Pty Ltd & Anor [2020] VSC 875, [76].

The issues between the parties to the proceeding are currently defined by the further amended statement of claim dated 28 May 2021 (‘ASC’), the amended defence and counterclaim dated 10 August 2021 (‘ADCC’), and the amended reply and defence to counterclaim dated 24 September 2021 (‘Reply’).

The ADCC alleges interference by the Principal in the Principal’s Representative’s performance of the Certification Role, including via the Principal’s solicitors, Herbert Smith Freehills (‘HSF’). The allegations concerning HSF are made in paragraphs 49 – 55, 63 – 71, 95 and 107 of the ADCC.

Paragraph 51A of the ADCC provides a list of 22 different interactions between HSF and the Principal’s Representative, Mr Rohde, relevant to his discharge of the Certification Role. It is alleged, at paragraph 53 of the ADCC, that HSF privately provided comments and advice to the Principal’s Representative on the Contractor’s claims. It is alleged that the effect of those communications and other communications referred to in schedule 2 to the ADCC was that the Principal’s Representative failed to give full disclosure of his communications with the Principal or those acting on its behalf, allowed his judgment to be influenced by the Principal or those acting on its behalf, and failed to act reasonably or make fair determinations in breach of clause 31.2 of the EPC Contract. The particulars to paragraph 51A refer to the possibility that further interactions may be pleaded upon the Contractor receiving further documents including by way of subpoena and further discovery.

Recent amendments to the ADCC incorporated additional allegations which specifically relate to HSF and to the Principal’s Representative’s Certification Role. Those amendments include paragraphs 54A and 54B of the ADCC.

The recent amendments followed the making of discovery by the Principal pursuant to orders for discovery made on 21 May 2021. By consent, the categories of documents required to be discovered by the Principal relevantly included:

Documents passing between the Plaintiff and those acting on its behalf (including Herbert Smith Freehills) and the Principal’s Representative in connection with the Principal’s Representative’s exercise of the Certification Role (‘the HSF documents’).

Discovery, including of the HSF documents, was provided in two tranches on 4 June 2021 and 18 June 2021. Following discovery of the HSF documents, there has been no complaint about the adequacy of that discovery. The same is the case concerning redactions made to discovered HSF documents.

During the course of the hearing the Court was informed that no subpoena has been issued to the Principal’s Representative for the production by him of documents relating to his performance of the Certification Role under the EPC Contract.

The application

On 18 August 2021, the Contractor issued a summons seeking orders that HSF be restrained from:

(a)acting for the Principal in relation to this proceeding; and
(b)giving legal advice or advice on legal strategy to the Principal in relation to this proceeding.

In support of the summons, the Contractor relied upon affidavits from its solicitor, Matthew Croagh dated 19 August 2021 and 5 October 2021, and upon the ADCC. During the hearing the Contractor referred to and relied on an aide memoire (a pleadings matrix) which reproduced paragraphs 49 – 55, 63 – 70, and 71 – 76 of the ADCC, and the responses to those paragraphs in the Reply. Written submissions were filed by the Contractor on 17 September 2021 and reply submissions were filed on 5 October 2021. The Contractor provided an aide memoire to the Court being a chronology of communications, including communications involving the Principal’s Representative and communications passing between the solicitors for the parties between 4 December 2018 and 18 June 2021.

The Principal opposed the relief sought in the summons. It primarily relied upon affidavits of Thomas Irvine, a director of the Principal, and of Clare Smethurst, a partner of HSF, both dated 10 September 2021. HSF have the carriage of this proceeding on behalf of the Principal. The Principal also relied on paragraphs 83 – 96 of the affidavit of Mr Irvine made 27 July 2021 and paragraph 21(j) of the affidavit of Neville Gall, made on behalf of the Contractor on 9 September 2021.

Written submissions were filed by the Principal on 27 September 2021. On 12 October 2021 it provided an aide memoire to the Court concerning delays (‘the Delay Aide Memoire’).

The issues on the pleadings – an overview

The claim by the Principal against the Contractor is for $15,456,850.27 for Delay Liquidated Damages. The claim is a net claim. The ASC alleges that on 1 May 2020 the Principal issued a notice to the Contractor demanding payment of Delay Liquidated Damages in the amount of $38,458,627.07. Further, the ASC alleges that on 4 June 2020 the Principal issued a notice demanding payment of further Delayed Liquidated Damages in the sum of $7,845,648.20. On 14 July 2020, the Principal had recourse to the Performance Security under the EPC Contract in the amount of $30,847,425 referrable to Delay Liquidated Damages. The $15,456,850.27 claim represents the balance of Delay Liquidated Damages that the Principal claims from the Contractor pursuant to the EPC Contract following recourse to the Performance Security.

In the ADCC the Contractor denies liability to pay Delay Liquidated Damages. It alleges there has been improper interference by the Principal and those acting on its behalf in relation to the Principal’s Representative’s assessment of the Contractor’s claims under the EPC Contract. It alleges that the Principal’s Representative has failed to perform the Certification Role in accordance with clause 31.2 of the EPC Contract and that by reason of those matters the Contractor has been deprived of reasonable and fair determination of its claims, that the proper performance of the Certification Role in the contract has been fundamentally undermined and that the Principal’s Representative’s assessment is rendered void and of no effect. Alternatively it alleges the EOT regime in clause 13.3 of the EPC Contract is so uncertain in its operation that it is of no effect. Accordingly, the ADCC alleges that there remains no proper foundation for the Principal’s claim to Delay Liquidated Damages, and the time for achieving the date of Practical Completion, both at the Elaine and Yendon wind farms, is at large. Alternatively, if the Delay Liquidated Damages regime under the contract is valid and if the Principal has an entitlement to Delay Liquidated Damages in respect of Elaine and Yendon, both of which matters are denied, the Contractor is entitled to EOTs to the date for Practical Completion both in respect of Elaine and Yendon. Further, and in any event, any Early Generation Revenue that has been or will be produced is required to be deducted from the Contractor’s alleged liability for Delay Liquidated Damages both at Elaine and Yendon. The Contractor pleads that if time is at large in respect of the date for Practical Completion, then the reasonable time by which the Contractor was required to achieve Practical Completion at Elaine and Yendon must take into account each of the matters raised by the Contractor’s claims for variations, and EOTs in respect of Elaine and Yendon, and significant delay occasioned by the Australian Energy Market Operator (‘AEMO’) in relation to the registration and commissioning of the works at both Elaine and Yendon.

In the ASC the Principal pleads that if time is at large in respect of the date for Practical Completion both at Elaine and Yendon, which is denied, the Contractor was obliged to achieve Practical Completion within a reasonable time, in the case of Elaine, by 19 September 2019 and in the case of Yendon, by 24 July 2019. The failure on the part of the Contractor to achieve Practical Completion by those dates (the same dates as the dates specified in the EPC Contract) is alleged to have the consequence that the Contractor is liable to pay Delay Liquidated Damages for each day after the dates on which Practical Completion should have been achieved, subject to the Delay Liquidated Damages Cap referable to each of Elaine and Yendon. Damages are sought in the alternative against the Contractor on that basis.

The relief sought by the Contractor by the ADCC includes a declaration that the EOT regime under the EPC Contract is ineffective by reason of the Principal’s interference, alternatively void for uncertainty, and a declaration that time is at large in respect of the dates for Practical Completion in respect of both Elaine and Yendon. An order is sought for restitution in the amount of $30,847,425, being amounts paid in the form of Delay Liquidated Damages, or such lesser amount as the Court may determine. An order is sought for an accounting in respect of Early Generation Revenue, and damages are sought against the Principal in respect of all amounts levied against the Contractor in the form of Delay Liquidated Damages. Damages are sought in the alternative against the Principal pursuant to s 236 of sch 2 to the Competition and Consumer Act 2010 (Cth) (‘Australian Consumer Law’).

Separate allegations are made in the ASC in relation to defects in the Lightning Protection System. It is alleged that following notification of those defects the Contractor failed to rectify the defects. The relief sought against the Contractor in this regard includes declaratory relief concerning the Lightning Protection System and an order for specific performance, alternatively, damages in lieu of specific performance. The allegations concerning the Lightning Protection System are denied by the Contractor.

The Certification Role and the requirement for impartiality

What is required of a Principal’s Representative when performing a Certification Role in the context of a clause such as clause 31.2 of the EPC Contract was the subject of detailed consideration by Warren CJ in Kane Constructions Pty Ltd v Sopov.[8]
[8][2005] VSC 237; (2006) 22 BCL 92 (‘Sopov’).

In Sopov, the contract provided that in the exercise of the functions of the Superintendent, the Principal was to ensure the Superintendent ‘acts honestly and fairly’. Warren CJ found that a Superintendent would act ‘honestly and fairly’ when the ‘individual is not dishonest, is just and impartial and conducts himself or herself in a reasonable manner’.[9] Her Honour went on to consider ‘undue influence’ noting that commentators have considered it ‘arises in certain circumstances but including where there is improper pressure, influence or interference by the owner’.[10]
[9]Ibid, [617].
[10]Ibid, [619].

Warren CJ made the following reference to Hudson’s Building and Engineering Contracts:[11]

621In Hudson’s, it was further stated that:
“No doubt where interference or pressure by an owner results in no certificate being given, the prevention principle will apply but the cases show that other forms of influencing or interference need only be such as to cast doubt on the certifier’s independence … once the certifier’s independence has become suspect, the courts will not concern themselves unduly with the extent or degree of influence over the certifier, or its precise impact on the certificate in question.
Apart from cases where, on the facts, the prevention principle can properly be invoked, the basis for this ground of avoidance of certification of decisions will be an implied term prohibiting the improper influencing of certifiers, it is submitted”.[12]

[11]Ian Duncan Wallace, Hudson’s Building and Engineering Contracts: including the duties and liabilities of architects, engineers and surveyors (Sweet & Maxwell, 11^th ed, 1995).

[12][2005] VSC 237; (2006) 22 BCL 92, [621] (citations omitted).

After reviewing earlier authority, Warren CJ said:[13]

623A set of indicia of interference of a superintendent may be extracted from the authorities. First of all, with respect to the role of the superintendent, interference leading to impartiality can arise in a series of circumstances. These include when the superintendent allows judgment to be influenced; when the superintendent is in a position whereby the certificate is deprived of value; when the superintendent acts in the interests of one of the parties and by their direction; when the position is misconceived and the superintendent acts as mediator; when there is not sufficient firmness in order to decide questions based on his or her own opinion; where judgement and conduct are controlled by the principal; and where the superintendent considers the assent of the principal to be necessary, has ceased to be a free agent and does not give full disclosure of every communication between the superintendent and the principal. Finally, the superintendent may lose independence without actually intending to do so or even without knowledge they have done so.
624In relation to the principal, interference will arise where there is an attempt to lead the superintendent astray in the interests of the principal; and where there is correspondence and communication of an improper character between the principal and the superintendent. In relation to the contractor, interference will arise where the contractor has no knowledge of the interfering conduct so as to prevent the builder raising the point.

[13]Ibid, [623] – [624] (citations omitted).

The Principal does not take issue with the proposition that Sopov provides a convenient overview concerning the role of a certifying Principal’s Representative and of the obligations imposed pursuant to a clause such as clause 31.2. However, the Principal was careful to note in oral argument that the presence of indicia of interference with the independent exercise of the Certification Role does not mean there is in fact interference.

That submission is consistent with the views expressed by Warren CJ in Sopov where her Honour qualified the reference to actionable interference by referring to ‘improper pressure, influence or interference’.[14]
[14]Ibid, [619].

The principles to be applied on the application

The parties are agreed that the recent decision of Lyons J in Dugan v Process Holdings Pty Ltd provides a convenient and helpful summary of the principles to be applied on this application:[15]
[15][2021] VSC 555 (‘Dugan’), [61] – [64] (citations omitted).

61.The principles to be applied in determining whether to exercise the Court’s inherent jurisdiction to restrain solicitors from acting in the administration of justice were generally not in dispute. Those principles were summarised in Kallinicos v Hunt (‘Kallinicos’) as follows:
(1)the Court always has inherent jurisdiction to restrain solicitors from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice;
(2)the test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interest of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice;
(3)the jurisdiction is exceptional and is to be exercised with caution;
(4)due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without good cause; and
(5)the timing of the application may be relevant, in that the cost, inconvenience and impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

62.The mere prospect of a solicitor being called to give evidence as a material witness, even on controversial matters, is not enough to invoke the jurisdiction of the Court to restrain the solicitor from acting. As Brereton J noted in Mitchell v Burrell (‘Mitchell’):
the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act.

63Further, the Court’s inherent jurisdiction to restrain a solicitor from acting is discretionary. In exercising that discretion, the Court must take into account the prima facie right of a party to be represented by the lawyer of his or her choice, the inconvenience, cost and disruption which might be caused in requiring a party to change lawyers, and the exceptional nature of the Court’s jurisdiction.
64Finally, it is important to bear in mind that the conclusion that must be reached is that the administration of justice, including the appearance of its administration, ‘requires’ that the solicitor should be prevented from continuing to act. This point was emphasised by Pagone J in Premier Capital (China) Ltd v Sandhurst Trustees Ltd. As noted by his Honour, there may be circumstances where a fair-minded reasonably informed member of the public may conclude that it would be prudent that a solicitor not act in a proceeding. However, the test is whether the administration of justice ‘requires’ that the solicitor be prevented from continuing to act.

In support of its application, the Contractor relied upon passages from two decisions of Brereton J referred to in Dugan.[16] The first in Mitchell v Burrell,[17] where his Honour said:

…the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice — which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests — require the lawyer to be restrained from continuing to act.[18]

The second, in Kallinicos v Hunt,[19] where his Honour said:
…Although I do not think that fair-minded and reasonably informed members of the public conceive that legal representatives are entirely impartial, as most would see them as aligned with the parties whom they represent, and while it needs be borne in mind that the alternative to legal representation is self representation, in which case none of the controls which legal representation imposes on the conduct of litigation would apply, nonetheless, fair-minded and reasonably informed members of the public expect that lawyers will provide advice to their clients, and conduct litigation in which they act, free of and unaffected by any personal interest in the outcome.[20]

[16]Ibid, [62].

[17][2008] NSWSC 772 (‘Mitchell’).

[18]Ibid, [20].

[19][2005] NSWSC 1181; (2005) 64 NSWLR 561 (‘Kallinicos’).

[20]Ibid, [90].

During the hearing the Contractor sought to emphasise two matters which it submitted meant that HSF had a ‘personal stake’ or had ‘skin in the game’ beyond remuneration for its services. The first was alleged reputational risk, the second was alleged financial risk.

The Principal contested the existence of both risks, certainly to the extent of materiality of either such risk. It submitted that the ‘personal stake’ of legal practitioners to which Brereton J referred in Mitchell,[21] and also the circumstances of Mitchell, Kallinicos and Dugan, are very different from the present case. It submitted that in those cases the solicitors and client were in conflict and the credit and integrity of the solicitors were in focus. Neither of those factors were submitted to be present in this case.
[21][2008] NSWSC 772, [20].

The Principal submitted the jurisdiction to restrain is an exceptional jurisdiction to be exercised with caution, that it is a serious matter to make such an order, and that only where the proper administration of justice ’requires’ the restraint is the jurisdiction invoked. Further, the Principal submitted that due weight should be given to the public interest in a litigant not being deprived of the lawyer of its choice without due cause, and that the timing of the application may be relevant. That is so because the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.

In anticipation of an argument concerning delay in bringing the application, the Contractor relied upon Kallinicos, in which the most important material relevant to the solicitor acting was not produced until over two years into the proceeding.[22] It was submitted the present circumstances were analogous and that, as in Kallinicos, the proceedings to date have largely involved procedural issues.
[22][2005] NSWSC 1181; (2005) 64 NSWLR 561, [94].

No point was taken by the Principal in relation to delay, although it was submitted that the proceedings have advanced beyond procedural issues.

As Lyons J observed in Dugan, while the principles can be simply stated, the application depends upon the facts of each case.[23]
[23][2021] VSC 555, [65].

In Kallinicos, Brereton J said this of the solicitor whom the plaintiff sought to restrain:

84 Accordingly, in my opinion, Mr Moloney will be a material witness on issues of substance which appear to be controversial and in respect of which questions of credibility and integrity (not necessarily his own) are likely to arise.
85 Moreover, there is a high degree of probability that Mr Moloney’s evidence and/or conduct will come under scrutiny…
86 … the propriety of Mr Moloney’s conduct is likely to be examined in the proceedings, and his evidence is likely to be material. He will be in a position in which his client's interest, his own interest, and his obligation to the Court may well be in conflict...[24]

[24][2005] NSWSC 1181; (2005) 64 NSWLR 561, [84] – [86].

His Honour concluded:

90 In my opinion a fair-minded, reasonably informed member of the public would conclude that the independent objectivity of Mr Moloney as solicitor and/or witness was compromised by conflicts between his obligation of loyalty to his client Mr Hunt, his role and knowledge as a witness of material facts, and his potential personal interest. Although I do not think that fair-minded and reasonably informed members of the public conceive that legal representatives are entirely impartial, as most would see them as aligned with the parties whom they represent, and while it needs be borne in mind that the alternative to legal representation is self representation, in which case none of the controls which legal representation imposes on the conduct of litigation would apply, nonetheless, fair-minded and reasonably informed members of the public expect that lawyers will provide advice to their clients, and conduct litigation in which they act, free of and unaffected by any personal interest in the outcome.[25]

[25]Ibid, [90].

In Mitchell, Brereton J was satisfied that the solicitor, Mr Morey, may have been a witness on a material matter and that his evidence may be controversial.[26]
[26][2008] NSWSC 772, [19].

In Dugan, it was agreed that the solicitor, Mr Brooks, was a material witness.[27] He was a material witness because Mr Dugan’s case was that he would have followed Mr Brooks’ counterfactual advice.[28] Lyons J declined to make an order restraining the firm, of which Mr Brooks was now a partner, from continuing to act for Mr Dugan.[29] While his Honour considered that Mr Brooks’ advice might come under close scrutiny at trial, the risk of inconsistency in relation to factual matters was very low.[30] The plaintiff’s representation case depended for the most part on written communications, meaning that oral evidence as to whether the representations alleged were made, or as to the substance of such communications would be of no great moment at the trial.[31]
[27][2021] VSC 555, [41].
[28]Ibid, [125].
[29]Ibid, [194].
[30]Ibid, [125], [129].
[31]Ibid, [130].

The orders sought on the application

The summons filed on behalf of the Contractor seeks two separate restraining orders. The first, to restrain HSF from acting as solicitors on behalf of the Principal in the proceeding. That is a conventional restraint. The second restraint, one restraining HSF from giving legal advice on legal strategies relating to the proceeding, is one which, so far as the researches of the parties and practitioners have been able to ascertain, is a restraint made on one occasion only, by Sloss J in Lee & Anor v MK Trading Co Aust Pty Ltd & Anor.[32]
[32][2021] VSC 343 (‘Lee’), [61] – [62].

Submissions on behalf of the Contractor

The Contractor submitted that a fair-minded, reasonably informed person would conclude that HSF is required to be restrained:

(a) First, it is inevitable that there will be inconsistent evidence and arguments about HSF’s conduct.[33]
[33]Defendants, Defendants’ Outline of Submissions Application to Restrain Herbert Smith Freehills, dated 17 September 2020, (‘Defendants’ Submissions’), [58], referring to Dugan [2021] VSC 555, [93] – [96].

(b) Second, regardless of whether HSF partners and lawyers give evidence, its actions will be the subject of evidence and close scrutiny at trial and ultimately submissions and findings of the court.[34]
[34]Ibid, [61].

(c) Third, HSF necessarily has a personal stake and a keen interest in the outcome of the proceedings well beyond the usual recovery of its fees and the usual interest of doing the best it can for its client, including the protection of HSF’s reputation and seeking not to be found to have to have caused a breach of contract or contributed to a course of conduct amounting to unconscionable conduct concerning a large wind farm project.[35]
[35]Ibid, [64].

(d) Fourth, by reason of those three matters, HSF cannot maintain its objectivity and independence or the perception of objectivity and independence, which is required of legal practitioners in proceedings before the court.[36]
[36]Ibid, [69].

(e) Fifth, the ’information barrier’ (put in place by HSF) is irrelevant, except that it reveals HSF has a problem with acting.[37]
[37]Ibid, [78] – [79].

(f) Sixth, discretionary considerations do not tend against a restraint:

(i)Due weight should be given to the public interest in a litigant not being deprived of the lawyer of its own choice without cause.[38]
(ii)Another relevant discretionary consideration is the timing of the application to restrain.[39]
(iii)The restraint should be of the entire law firm of HSF.[40]

[38]Ibid, [55].

[39]Ibid, [85].

[40]Ibid, [96].

The Contractor accepted that the jurisdiction to restrain solicitors from acting is exceptional. It contended the materials here are exceptional, ‘unprecedented’ in a way that shows the involvement of solicitors with independent tasks under the EPC Contract required of the Principal’s Representative.

The Contractor submitted that the right to choose one’s lawyers must be weighed up and measured against the need for the proper and efficient administration of justice. Further, that the nature of the conflict is of such magnitude that considering the impact of such conduct on the administration of justice, the discretion must be exercised to restrain HSF from acting. It was submitted there could be no more compelling foundation for restraint than the written communications involving HSF and the Principal’s Representative concerning his Certification Role.

The Contractor submitted that critical paragraphs of the ADCC, in particular paragraph 54A, rely upon the contents of discussions to which HSF was a party, including the development of a methodology for the certification of claims and participation in the joint review and assessment of claims by HSF, to establish that there was impermissible interference by the Principal in the Principal’s Representative’s performance of the Certification Role.

The Contractor drew attention to the Reply where, under cover of objection to the pleading, the Principal admits the private communications with the Principal’s Representative and that the Principal’s Representative did not give full disclosure of every communication between him and the Principal or those acting on its behalf (including HSF) concerning the exercise of the Certification Role. Paragraphs 54A and 54B of the ADCC, subject to objection, are denied in the Reply. Similarly denied in the Reply is paragraph 55 of the ADCC, which alleges that by permitting the communications pleaded in paragraphs 51A and 54A and the other instances referred to in attached schedule 2 to the ADCC, the Principal improperly interfered in the Principal’s Representative’s performance of the Certification Role under the EPC Contract. The Contractor submitted that by denying those allegations, the role of HSF in relation to EOT claims was put in dispute. That was submitted to be untenable given the communications between HSF and the Principal’s Representative.

It was submitted that the denials in the Reply placed HSF’s conduct in issue, and that when HSF instructs counsel or conducts litigation on behalf of the Principal, HSF cannot be independent; the perception on the part of a fair-minded member of the public is of a lack of objectivity and independence.

It was submitted that a conflict will arise between the interests of the Principal and those of HSF when HSF are involved in preparing a proof of evidence from the Principal’s Representative, Mr Rohde. It was submitted it will be in HSF’s interests at that time to downplay interference by HSF in his performance of the Certification Role.

A very large number of communications between HSF and the Principal’s Representative are relied on by the Contractor, both in support of this application and in respect of its substantive claim. During the hearing, in the interests of time, the Court was taken to some specific examples only of such communications. The examples to which attention was directed during the hearing, together with other examples highlighted in the Contractor’s written submissions,[41] may be taken to have been identified by the Contractor as amongst what it considers to be the most egregious examples of interference with the independence of the Principal’s Representative’s exercise of the Certification Role:

(a)On 2 March 2020 an email from a partner of HSF to Mr Rohde (copied to several others) attaching an initial review by a solicitor at HSF of the EOT claims received from the Contractor. The email advised that HSF had set out a number of additional questions ‘that we will need technical input in order to be able to reach a confirmed view as to the merits of the EOT claim’. On the following day, an exchange of views by email between those parties and Mr Ritter of AECOM included a statement by the partner of HSF: ‘I think we need to also think about how we deal with this parallel EOT process that seems to be arising here, and consider how we strategically respond’.[42]
(b)On 4 March 2020 an email from Mr Rohde to a partner at HSF saying that he had left in an argument (being an argument identified by HSF) ‘but I do not consider the argument would achieve a reasonableness test… I do feel I would not be living up to my personal obligations under 31.2. Appreciate I might have a different view to [Mr Ritter]. Regardless the other items I consider form the a [sic] basis to reject that is substantive enough to not sway the assessment’.[43]
(c)On 1 April 2020, an email from Mr Rohde to a partner at HSF (copied to several others) asking how he should respond to a letter received the previous day from the Contractor’s solicitors, and the response from a partner at HSF advising Mr Rohde not to send any materials or to respond until they had discussed, advising that HSF would review and ‘come back with some thoughts’.[44]
(d)On 9 April 2020 an email from Mr Rohde to a partner at HSF stating ‘since [the Principals] and HSF consider a reasonable likelihood that the Contractor may seek adjudication under the Security of Payment Act (Vic) please see attached certification letter for review…’.[45]

[41]Defendants’ Submissions, [38] – [50], referring to examples of such communications between HSF and the Principal’s Representative dated 12 July 2019, 17 July 2019, 23 July 2019, 16 September 2019, 23 December 2019, 18 February 2020 and 3 March 2020.

[42]Defendants, Amended Defence and Counterclaim, dated 10 August 2021 (‘ADCC’), Schedule 2, Items 205 and 206.

[43]Ibid, Item 212.

[44]Ibid, Items 221 and 222.

[45]Ibid, Item 223.

The Contractor submitted that the communications relied upon showed involvement on the part of HSF in evaluating the merits of EOT claims and being involved in the dispute, interference by HSF with the independence of the Principal’s Representative, and the presence of an EOT working group, which included representatives of HSF, working in conjunction with the Principal’s Representative on the merits of EOT claims. It was submitted the denials in the Reply fly in the face of these documents and establish that HSF’s involvement in the intricacies of the certification process is a matter in issue in the proceeding.

Although the ADCC relies upon communications such as those referred to in paragraph 61 above, in support of the allegations of improper interference by the Principal and HSF in the performance by the Principal’s Representative of the Certification Role, the Contractor did not know about the fact of such communications and did not have copies of documents evidencing or relating to them, until after discovery of the HSF documents. In the Contractor’s original defence and counterclaim the allegations concerning HSF’s conduct were pleaded by inference relying upon metadata of the electronic copies of five letters referring to ’HSF comments’ and some text messages.

The Contractor submitted that what occurred prior to the issuing of the proceeding, when requests were made by or on its behalf for documents concerning the performance by the Principal’s Representative of the Certification Role, is relevant to the determination of the application. It submitted there were at that time ‘consistent denials by HSF of what it described as “unfounded allegations” concerning interference with respect to the Certification Role’.[46] Further, that an inference should be drawn from references to ‘Matter 82702488’ in correspondence from the Principal on 10 June 2020 and 10 July 2020 that those letters were drafted and prepared by HSF, as the reference and the style and format were ‘the exact same’ as other HSF letters.[47]
[46]Defendants’ Submissions, [10].
[47]Ibid, [16].

The first request for documents relating to the Certification Role was made by the Contractor on 30 March 2020, by letter from the Contractor’s solicitors, Pinsent Masons, to Mr Rohde.[48] The letter also asked Mr Rohde to confirm whether he had ‘complied with the requirements of clause 31.2 in respect of your Certification Role, particularly that you have acted honestly, reasonably and made fair determinations in accordance with the Contract. In addition this confirmation should set out whether you have been free to act independently and without undue influence from the Principal (including its financiers and lawyers)’.[49] On 5 June 2020, a letter from HSF to Pinsent Masons included the following:
[48]Defendants, Affidavit of Matthew Edward Croagh, dated 19 August 2021, exhibit “MEC-44”, being the Affidavit of Matthew Edward Croagh sworn 3 August 2020, with the letter from Pinsent Masons dated 30 March 2020 at exhibit “MEC-12” to that Affidavit.
[49]Ibid.

Contractor’s allegations regarding Principal’s Representative
As a separate matter to the absence of any entitlement of your client to receive the material outlined in your letters, it is necessary for us to once again address your client’s unfounded allegations regarding the Principal’s Representative.
The allegations raised in your letter are very serious, and have significant implications for the project. The gravity of those allegations underscores the importance of your client having a proper basis for making them in the first place. Regrettably, the matters upon which your letters have sought to rely make clear that this has not been the case.
It is unacceptable for your client to attempt to manufacture that basis, including by sending multiple self-serving letters seeking to parse the language used by the Principal’s Representative when discharging his functions and making repeated requests for materials to which it is not entitled. The adoption of such an approach, while unfortunate, will not create a basis for your client to make such serious allegations which otherwise does not exist.
In this regard, our client does not agree that the matters raised in your earlier correspondence are capable of supporting an allegation of interference with the Principal’s Representative’s Certification Role, including in the manner suggested in paragraph 3.6 of your letter dated 11 May 2020.
Put simply, there is no rational connection between the administrative matters outlined in your letters and the conclusions your client seeks to draw. At no point has your client suggested that the Principal’s Representative has carried out the Certification Role in any way other than honestly, reasonably and fairly.
Our client maintains that there has been no interference by the Principal in the Certification Role, and there is no reasonable basis for a suggestion to the contrary.[50]

[50]Ibid, exhibit “MEC-21”.

On 10 June 2020 a letter from the Chair of Lal Lal Wind Farms to the Delegated Contractor’s Representative, which referenced ‘Matter 82702488’ in the top right-hand corner of the page, included the following:

The premise of the Notice is fundamentally erroneous. There has been no interference by the Principal, or its solicitors, with the Principal’s Representative’s exercise of the Certification Role under the EPC Contract, and nothing raised by the Contractor in its solicitors’ correspondence appended to the Notice (or otherwise) gives any reasonable basis to assert or identify any “apparent” interference of such nature. The Principal and the Principal’s Representative have previously clearly confirmed that this is the case, in their correspondence which is enclosed with the Notice.
To be clear, there has been no breach of the EPC Contract, let alone a breach which would amount to a repudiation, and we specifically reject that the Contractor “would” be entitled “to accept repudiation” of the EPC Contract as alleged.
To the contrary, the Notice and the Contractor’s correspondence (through its solicitors) preceding the issuance of the Notice are plainly a disingenuous and mischievous attempt to create leverage under the EPC Contract and distract from the Contractor’s obligations to complete the Project. It is unfortunate that the Contractor continues to ignore the substance of the responses being provided to its allegations and to insist upon proceeding with confected allegations seemingly to create some legal right, the nature of which it has not articulated.
What is perhaps even more concerning, however, is that the communication by the Contractor of these allegations to third parties, including the Security Trustee, has the potential to mislead, and to cause loss and damage to the Principal.
In the circumstances, the appropriate course is for the Contractor is to withdraw the Notice as a matter of priority.
The Principal remains ready, willing and able to perform its obligations under the EPC Contract. It reserves all of its rights under the EPC Contract and otherwise at law.
A copy of this letter has been provided to the Security Trustee.[51]

[51]Ibid, exhibit “MEC-22”.

In written submissions the Principal submitted the absence of any challenge by the Contractor to the adequacy of the Principal’s discovery of the HSF documents or to redactions made to those documents ‘comprehensively exonerates the objectivity and independence of HSF and its solicitors acting on this proceeding, particularly given the issues to which the documents in question related’.[52] The Principal submitted that by the discovery process HSF’s objectivity and independence ‘have been tested and comprehensively vindicated’.[53] In response, the Contractor submitted the proposition that the Principal has been ‘vindicated’ by compliance with Court orders for discovery, of which the communications mentioned in paragraph 61 above and in the Contractor’s written submissions are examples, fails to recognise the history of earlier requests by the Contractor for the production of such documents.[54] References in the submissions to HSF being ‘vindicated’ were said on behalf of the Contractor to show the position in which HSF had placed itself; a position in which it required or needed vindication.
[52]Plaintiff, Plaintiff’s Submissions in Opposition to the Defendants’ Summons filed 18 August 2021, dated 27 September 2021, (‘Plaintiff’s Submissions’), [74] - [75].
[53]Ibid, [72].
[54]Defendants, Defendants’ Submissions in Reply, dated 5 October 2021, [23] – [28].

The Contractor submitted that 16 lawyers from HSF, including five partners, were involved in private communications with the Principal’s Representative concerning the Certification Role. It submitted that HSF is exposed both to reputational risk and to financial risk should it continue to act.

The Contractor submitted that if HSF was found to have caused breach on the part of the Principal’s Representative in the performance of the Certification Role, that HSF would suffer reputational risk, causing that firm to have ‘skin in the game’. In support of that submission, reference was made to the decision in Mitchell.[55] The profile of the HSF construction and infrastructure team, exhibited to the affidavit of Mr Croagh sworn on 5 October 2021, was relied upon. Two of the partners of HSF involved in the communications referred to in schedule 2 to the ADCC are part of that same Australian team and are shown in the profile. It was submitted the affidavit of Ms Smethurst fails to address the reputational risk to HSF and to that team of a finding that two partners of that team had caused breach by interference in the Principal’s Representative’s performance of the Certification Role.
[55][2008] NSWSC 772, [20].

As to HSF’s financial risk, it was submitted that there is a potential conflict of interest between the interests of the Principal and those of HSF. If the EOT process, or decisions made by the Principal’s Representative in the Certification Role are set aside because of the involvement of HSF, there exists the potential for the Principal to sue HSF. It was submitted that although the affidavit of Mr Irving expressed his satisfaction, and that of the Principal, with HSF continuing to act, his affidavit did not refer to the consequences of a potential claim against HSF.

Responding to evidence that HSF has put in place an information barrier, the Contractor submitted that the affidavit of Ms Smethurst does not explain how any information barrier can ensure the HSF disputes team and ‘numerous likely HSF witnesses can remain objective’ when responding to allegations against their own law firm. Further, it was submitted that the fact that an information barrier has been established indicates a level of acceptance by HSF that is has a problem with otherwise acting in the proceeding; a reasonable bystander would ask why an information barrier existed and why it was needed.

Addressing the identity of the legal practitioner or practitioners who should be restrained, the Contractor submitted that if one partner is to be restrained, then HSF as a whole should be restrained. That was said to be necessary having regard to the duty of loyalty owed as between partners.

Submissions on behalf of the Principal

The Principal submitted that the threshold test for jurisdiction to make a restraining order in respect of HSF is not made out. But, if contrary to the Principal’s primary submission, jurisdiction were found to be established, the proper exercise of the discretion requires there be no restraining order.

The Principal urged a methodical rather than a broad-brush approach to the determination of the application by reference to the pleadings. It submitted the effect of such an analysis would demonstrate the assertion by the Contractor that interference with the independence of the Principal’s Representative in the Certification Role as a central issue in the proceeding would be shown not to be the case, and that in truth, the case is a case about delay. It was submitted the prospect that solicitors from HSF would be required to give evidence in the proceeding was highly unlikely and that HSF is not in a position of conflict. On behalf of the Principal it was denied that HSF has a personal stake or ‘skin in the game’.

The Principal contended that the Contractor’s submissions disregard that the pleaded case on the interference issue is a process that involves two steps. The first, that private communications took place between HSF and the Principal’s Representative regarding the Certification Role.[56] The second, that the private communications have had the effect of interfering with the proper performance by Mr Rohde of his Certification Role and that there are various contractual and legal consequences that flow as a result.
[56]ADCC, [50A], [51], [51A], [63A] and Schedule 2.

Responding to the specific documents to which the Court was taken, discussed at paragraph 61 above, it was submitted that while for the purpose of the application the Contractor made much of the content of those documents and said there could be no better evidence of interference, for the purposes of determining the pleaded case, the Court does not need to look at the content of the documents. That is so because the case as pleaded, including at paragraph 55 of the ADCC, is limited to the fact of communications only.

It was submitted that in circumstances where the case is based on the sending of documents and the fact of communications, there will be no occasion at the trial to delve into the contents of such communications. That being so, based on an analysis of the pleadings, it is highly unlikely that any solicitor from HSF would be called to give evidence.

Responding to submissions on behalf of the Contractor which directed particular attention to paragraph 51A(m) of the ADCC, and the reference to HSF’s participation in an EOT working group, the Principal said those matters are admitted in the Reply. The Principal further contended, that arguments on behalf of the Contractor that if witnesses from HSF are not called, inferences will be drawn based on Jones v Dunkel,[57] are false issues that do not arise when proper regard is had to the issues on the pleadings.
[57](1959) 101 CLR 298.

The Principal submitted that the Court should give significant weight to its ‘expressly stated, strong desire that HSF continue acting as its solicitors for the proceeding’.[58] The litigation is large in scale and complex; HSF have been acting for the Principal since May 2020, and the litigation is not at an early stage. Pleadings have closed, lay and expert evidence preparation is underway and orders have been made for the provision of instructions to a single expert in relation to programming issues.[59] Mr Irvine has given evidence that the Principal, with full knowledge of the restraint application, wishes to continue to retain HSF as the Principal’s solicitors.[60] It was submitted that such evidence is not a feature seen in the other cases where restraint orders have been sought.[61]
[58]Plaintiff’s Submissions, [54].
[59]Plaintiff, Affidavit of Clare Louise Smethurst, dated 10 September 2021, [35].
[60]Plaintiff, Affidavit of Thomas William Hugh Irvine, dated 10 September 2021, [26] – [29].
[61]See for example, Mitchell v Burrell [2008] NSWSC 772.

The Principal submitted that where the application to unseat the legal practitioner of a party is made by a competing litigant, the application must be carefully scrutinised. The present application is not one based on breach of duty owed by a solicitor to a former client, or made upon the premise that confidential information has come to the attention of a legal practitioner who should for that reason be restrained. It submitted there has been a shifting of position on the part of the Contractor, from a complaint about loss of objectivity on the part of HSF, to an assertion that HSF has a personal stake in the outcome of the litigation which means that it must be restrained.

Although the Principal did not submit there has been delay in the making of the application, it did point to the impact of cost, delay and prejudice if a restraining order is made requiring it to engage new solicitors.

The Principal submitted that HSF does not have a personal stake in the proceeding and that it is inherently difficult to show either a reputational or financial stake on the part of HSF. Given the pleaded issues, HSF’s conduct and integrity does not arise as an issue in the proceeding. It was submitted that in that respect the present case is to be distinguished from Kallinicos and Mitchell. It was submitted there is no reputational risk in play and that this is not a case where the solicitor’s conduct is part of the disputed factual circumstances. That being the case, it matters not, contrary to the Contractor’s submissions, that Ms Smethurst is silent in her affidavit about reputational risk.

As to financial risk, the Principal submitted that, having regard to the hurdles which need to be overcome by the Contractor, even if the improper interference alleged were to be made out, no financial exposure arises on the part of HSF to any potential claim until all of those hurdles are overcome.

It was submitted that the main issue in the case concerns the Contractor’s delays and that it is a mischaracterisation to say the case is all about interference in the Certification Role. It is because the main issue in the case is delay that the Court has appointed a single programming expert. By reference to the Delay Aide Memoire, the Principal sought to demonstrate that even if everything in the dispute falls in the Contractor’s favour, the Contractor would still be short of making up the requisite delay.

The Principal submitted that even if time is at large, which is denied, the Contractor would need to establish an entitlement to an additional 475-day delay concerning Elaine and an additional 310-day delay concerning Yendon before encroaching upon any part of the Delay Liquidated Damages previously paid to the Principal in the form of the Performance Security, and otherwise the subject of the $15,456,850.27 claim. The affidavit of Mr Gall, at paragraph 21(j), is relied on by the Principal as evidence of the Contractor’s expectation of achieving Practical Completion in the ’latter part of April 2022’. Adopting 20 April 2022 as the precise date, in the case of the Elaine windfarm, that would equate to a delay of 945 days, and in the case of the Yendon windfarm, a delay of 1002 days.

The Contractor took issue with the Principal’s Delay Aide Memoire. It submitted there are three problems which undermine and make unreliable the analysis in the Delay Aide Memoire. First, the Contractor does not accept that the Principal has a right to liquidated damages. If time is at large, there is no right to the liquidated damages regime and no right to liquidated damages rates in the EPC Contract used as the basis of calculations in the aide memoire. The EOT clause operates for the benefit of the Principal because it acts to preserve the liquidated damages mechanism while simultaneously providing the Contractor with certainty as to its financial exposure in respect of delays and maintaining the contractual deadline for completion. If, as the Contractor contends, the Certification Role in the EPC Contract has been fundamentally compromised, then what is required is to be determined is what is a reasonable time for completion of the works, absent an EOT regime. That will require the Principal to prove damages and the causal link between delays and damage sustained. The second problem identified by the Contractor relates to the number of days of delay referred to in the Delay Aide Memoire. The Contractor contended that many of the EOT claims do not identify the number of days claimed because the Contractor was unable to specify the number of days of the delay. As a result there are a number of claims where the days of delay was said to be unable to be assessed and continuing. The third problem identified by the Contractor concerns the calculation of Early Generation Revenue and the estimate of the Contractor’s entitlement. The aide memoire brings to account $6,778,798; however, that amount is not agreed. The Contractor alleges that the Principal’s calculation of Early Generation Revenue is not a calculation made in accordance with the EPC Contract.[62] Due to the three problems it identified, the Contractor submitted the matters covered by the Delay Aide Memoire are not accepted and the assumptions which underpin the document are wrong.
[62]ADCC, [92].

In reply submissions the Principal accepted that the analysis in the Delay Aide Memoire was one illustration only of why HSF does not have a financial stake in the proceeding. Nonetheless, the Delay Aide Memoire shows that the risk of financial exposure is low.

The Principal submitted that in circumstances where the risk of financial exposure is low, the reasonable bystander could not be said to apprehend that the proper administration of justice would be undermined by HSF continuing to act. There is no actual conflict with the firm’s position as agreed with its client and the prospect of any future conflict is remote. Any potential future financial exposure is a distant and contingent concept. As a result, there is no real financial or reputational risk. It follows that to say that HSF has ‘skin in the game’ is to vastly overstate the position.

The Principal referred to the information barrier put in place by HSF to separate those who were involved in communicating with the Principal’s Representative and those who are now involved in the conduct of the litigation. It was submitted that the reasonable bystander would not require a person to act in accordance with the information barrier that has been established, but that even if that were the case, the persons involved in the communications sought to be impugned have no way of crossing the information barrier. The presence of an information barrier was said to ensure that any doubts as to objectivity cannot properly be said to exist in the future. The fact that solicitors are geographically separated and in different teams of HSF was also relied upon.

The Principal submitted that the Court can have confidence that HSF will act properly as solicitors having the conduct of the proceeding based on the discovery of the HSF documents.

It was submitted the facts in the present case are very different to those in Mitchell and Kallinicos, where the solicitors were from small firms. It was submitted that Mitchell is unsound because it did not consider that the legal practitioner’s duty to the court is paramount.

It was submitted that if, contrary to the Principal’s submissions, the Court was minded to make a restraining order, the order should not include an order in the terms of paragraph (b) of the summons, namely that HSF be restrained from giving legal advice on legal strategy in relation to the proceeding. It was submitted that to seek such an order was an overreach and the facts in Lee were extreme. In Lee, the solicitor had asserted a personal financial interest in the business the subject of the proceeding, and was alleged to have threatened a defendant and his family.[63]
[63][2021] VSC 343, [39].

It was further submitted by the Principal that if a restraining order were to be made, it would be based upon concerns about the administration of justice and the perception relating to the justice system. Those matters would not stand to be impacted by the provision of private advice by HSF outside the proceeding, if the firm was otherwise restrained to act as the solicitor having the conduct of the proceeding.

Issues on the pleadings relevant to the restraint application

During the hearing of the application it became apparent there is a significant divergence between the interpretation by the competing parties of paragraphs 50A – 55 of the ADCC, a divergence which bears directly on the outcome of the application.

The Principal submitted that the allegations concerning the involvement of HSF in the performance of the Certification Role by the Principal’s Representative amount to allegations that by reason of the fact of communications, HSF on behalf of the Principal, interfered with the Principal’s Representative’s performance of the Certification Role. The Reply admits each of the communications alleged. By reason of the manner in which paragraphs 50A – 55 of the ADCC are pleaded, there will be no occasion at trial to consider the content of the communications, as opposed to the fact of such communications.

The Principal submitted the first element of the pleaded case on interference concerns the private communications that took place between HSF and the Principal’s Representative concerning the Certification Role. A clear understanding and identification of what is involved in the first element of the pleaded case is important when seeking to assess the likelihood or otherwise that any person from HSF will or may be called as a witness at the trial.

The Principal submitted the conduct of which complaint is made is the occurrence of private communications. Those occurrences, to the extent pleaded, are admitted.[64] The admission is both an admission of the fact of communications, oral communications and meetings, and that they were private.
[64]Plaintiff, Amended Reply and Defence to Counterclaim, dated 24 September 2021, [50A], [51], [51A] and [63A].

The Principal submitted that paragraph 54A alleges that certain matters ‘may be inferred’. That plea is not an allegation that those things in fact were the case. The Principal submitted the case is carefully pleaded, and is not one which asserts there was actual interference or that something actually happened. As pleaded at paragraph 55, the case for the Contractor is that by permitting the communications to occur, the Principal interfered with the Principal’s Representative in the Certification Role.

In response, the Contractor submitted the argument advanced by the Principal does not withstand scrutiny when one looks at paragraphs 50A – 55 of the ADCC. It submitted that paragraph 54A directly raises the contents of communications. By way of example, 54A(a) alleges a discussion of the merits, and 54A(b) refers to the development of the methodology.

As to what it described as the second limb of the pleaded case, the Principal submitted that the allegation raised by the Contractor that the private communications have had the effect of interfering with the proper performance by Mr Rohde of the Certification Role, and that there are consequences that flow as result, is a case founded on the communications themselves. The consequence that is alleged to flow from the private communications is that the Principal’s Representative failed to act in accordance with clause 31.2 of the EPC Contract, with the result that the certification process is fundamentally compromised, time is at large and the Principal is liable.[65]
[65]ADCC, [11A], [14B], [54B], [69], [73] – [76].

The second limb of the pleaded case is relevant to whether HSF faces a financial risk and, if so, as to the level of any such risk. That is so because it is only if the consequences alleged by the Contractor to flow materialise that a financial risk to HSF may arise.

The Principal submitted that to reach that point requires a number of sequential findings in favour of the Contractor. First, a finding there was improper interference. Second, a finding that such interference led the Principal’s Representative to fail to act fairly and to fail to make reasonable determinations. Third, a finding that as a result the contractual process for determining EOT claims has been fundamentally compromised. Fourth, a finding that as a result, time is at large. Fifth, a finding that the Contractor is entitled to EOTs, which EOTs extinguish the period of time by reference to which Delay Liquidated Damages have been deducted/claimed.

The relevant parts of the pleading matrix provided as an aide memoire on behalf of the Contractor are reproduced below:

Paragraph Defendants’ Amended Defence and Counterclaim Plaintiff’s Reply and Defence to Counterclaim

The Certification Role under the Contract Alleged interference

50A The First and Second Defendants rely upon the attached Schedule 2 generally as setting out a course of conduct throughout the Project by the Principal, the Principal’s solicitors Herbert Smith Freehills (HSF), the Principal’s consultants (including AECOM) and the Principal’s Representative, whereby the Principal routinely interfered with the Principal’s Representative’s performance of the Certification Role and the Principal’s Representative failed to act independently, fairly or reasonably in discharging the Certification Role. Particular instances are pleaded below.
To paragraph 50A:

(a) it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that it is a rolled up allegation in which Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 to the Amended Defence and Counterclaim;

(b)   under cover of that objection, it denies the allegations therein; and

(c) it says further that the following communications identified in Schedule 2 to the Amended Defence and Counterclaim related to the Certification Role after it had been performed by the Principal’s Representative (adopting the numbering from Schedule 2 to the Amended Defence and Counterclaim); 1-8, 100, 109, 127-129, 177, 183-184, 205, 221, 222, 241 and 242 (Post Certification Role Communications).

Interference by Principal in Principal’s Representative’s performance of Certification Role via HSF

51
By the instances pleaded more specifically in paragraph 51A below, and by the instances referred to in the attached Schedule 2, spanning from approximately 3 December 2018 to 6 August 2020, HSF (acting on behalf of the Principal) engaged in extensive private communications with the Principal’s Representative in relation to the exercise of the Principal’s Representative’s Certification Role.

[Particulars omitted]

To paragraph 51:

(a) subject to reference to the documents identified at paragraph 51A and Schedule 2 of the Amended Defence and Counterclaim for their full force and effect, it admits that, between approximately 3 December 2018 and 6 August 2020, Nom Co’s solicitors engaged in the communications identified in paragraph 51A and Schedule 2 of the Amended Defence and Counterclaim with the Principal’s Representative regarding the Certification Role, to which Vestas – Australia and Zenviron were not parties; and

(b)   it otherwise denies the allegations therein.

[Deleted pleading omitted]

51A
By way of summary [51A(a)] to [51A(v)] pleads specific instances of private communications between HSF (on behalf of the Principal) and the Principal’s Representative between the period 4 December 2018 and 11 May 2020. Those specific private communications include email communications and draft documents as well as references made to private meetings and telephone conversations regarding the Principal’s Representative’s determination of EOT and Variation Claims made by the Contractor. For example:

(a)   [51A(m)] refers to a ‘working group’ convened by HSF on 15 January 2020 with the Principal’s Representative, and representatives of the Plaintiff, to discuss specific EOT and Variation Claims made by the Contractor.

(b)   [51A(q)] refers to an initial review by HSF on or about 2 March 2020 of an EOT Claim made by the Contractor and a telephone discussion to be held the next day.

To paragraph 51A:

(a)   subject to reference to the documents identified therein for their full force and effect, it admits that its solicitors engaged in such communications with the Principal’s Representative; and

(b)   it otherwise does not admit the allegations therein.

52 Each of the communications pleaded in paragraph 51A above, and each of the other instances referred to in the attached Schedule 2, related to the exercise of the Principal’s Representative’s Certification Role.
To paragraph 52:

(aa) it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 to the Amended Defence and Counterclaim;

(a)    under cover of that objection, it admits that the private communications admitted in paragraphs 51(a) and 51A(a), above, and the communications referred to in Schedule 2 thereto, except the Post Certification Role Communications, related to the performance of the Principal’s Representative’s Certification Role under the Contract; and

(b)    it otherwise does not admit the allegations therein.

53
In providing comments and advice on the First and Second Defendant’s claims (which were communicated privately with the Principal’s Representative as pleaded in paragraph 51A above and those other instances involving HSF referred to in the attached Schedule 2). HSF acted on behalf of the Plaintiff.

[Particulars omitted]

To paragraph 53:

(aa) it objects to pleading thereto on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 to the Amended Defence and Counterclaim;

(a)    under cover of that objection, it admits that, in making the communications with the Principal’s Representative admitted in paragraphs 51(a) and 51A(a), above, and the communications referred to in Schedule 2 to the Amended Defence and Counterclaim, except the Post Certification Role Communications, Nom Co’s solicitors acted on its behalf; and

(b)    it otherwise does not admit the allegations therein.

54
The effect of the communications pleaded in paragraph 51A above and the other instances referred to in the attached Schedule 2 was that:

(a)   the Principal’s Representative failed to give full disclosure of every communication between the Principal’s Representative and the Plaintiff (or those acting on its behalf) concerning the exercise of the Certification Role;

(b)   the Principal’s Representative allowed his judgment to be influenced by the Plaintiff (or those acting on its behalf);

(c)   the First and Second Defendant were prevented from reviewing and/or responding to the matters raised in communications between the Principal’s Representative and the Plaintiff (or those acting on its behalf) concerning the First and Second Defendants’ claims, resulting in unfairness to the First and Second Defendants; and

(d)   accordingly, the Principal’s Representative failed to act reasonably or to make fair determinations, in breach of clause 31.2 of the Contract.

To paragraph 54:

(aa) it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 thereto;

(a)     under cover of the objection set out in sub-paragraph (aa), above, in relation to sub-paragraph (a);

(i)    it admits that the Principal’s Representative did not give full disclosure of every communication between the Principal’s Representative and Nom Co (or those acting on Nom Co’s behalf) concerning the exercise of the Certification Role in relation to the claims made by Vestas – Australia and Zenviron which are listed in paragraph 51A~~(a)~~, above, and the communications referred to in Schedule 2 to the Amended Defence and Counterclaim, except the Post Certification Role Communications; and

(ii)    it otherwise does not admit the allegations therein;

(b)     ~~it denies the allegations~~ in relation to sub-paragraph (b):

(i)    in addition to the objection set out in sub-paragraph (aa) above, it objects to pleadings thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out in that Vestas – Australia and Zenviron fail to plead or particularise;

(A) which of the communications pleaded in paragraph 51A and otherwise referred to in Schedule 2 of the Amended Defence and counterclaim are said to have operated on the Principal’s Representative such that he allowed his judgment to be influenced by Nom Co (or those acting on its behalf); and

(B)    how those communications are said to have had that effect; and

(ii)    under cover of those objections, it denies the allegations therein;

(c)     under cover of the objection set out in sub-paragraph (aa) above, it does not admit the allegations in sub-paragraph (c); and

(d)    under cover of the objection set out in sub-paragraph (aa), above, in relation to sub-paragraph (d):

(i)    it denies the allegations therein; and

(ii)    it says further that the Principal’s Representative made the correct determination in respect of Vestas – Australia and Zenviron’s claims which are alleged to have been made in breach of clause 31.2 of the Contract.

54A
Further, based upon at least the references in the communications pleaded in paragraph 51A above to discussions, meetings and workshops between HSF and the Principal’s Representative, it may be inferred that:

(a)     HSF and the Principal’s Representative discussed the merits of the Contractor’s claims and the merits of the assessment to be undertaken in performing the Certification Role;

(b)     HSF and the Principal’s Representative developed a methodology for, and participated in, the joint review and assessment of the Contractor’s claims with a view to potential disputes and litigation;

(c)     HSF, acting in the interest of the Principal, sought to privately influence and persuade the Principal’s Representative in performing the Certification Role to adopt positions that were favourable to the Principal and adverse to the Contractor; and

(d)    The Principal’s Representative at the meetings and workshops and during the discussions was influenced and persuaded, and allowed his independent judgment to be interfered with, by HSF, to adopt positions in performing the Certification Role that were favourable to the Principal and adverse to the Contractor.

To paragraph 54A:

(a)     it objects to pleading thereto, on the basis that:

(i)    it does not plead a material fact or conclusion of law, but instead purports to allege inferences that it is said “may” arise from the documents identified at paragraph 51A of the Amended Defence and Counterclaim, which is not a matter capable of being admitted, denied or not admitted; and

(ii)    the allegations therein are vague, embarrassing and ought be struck out because Vestas – Australia and Zenviron do not:

(A)    plead or particularise in full the documents which are said to be the subject of the allegation;

(B)    plead or particularise which inferences it is said may arise from which of the documents identified in paragraph 51A of the Amended Defence and Counterclaim, and how it is said such inferences may arise; or

(C)    plead or particularise the discussions, meetings or workshops said to have taken place between Herbert Smith Freehills and the Principal’s Representative giving rise to the matters which it is said can be inferred; and

(b)     under cover of those objections, it denies the allegations therein.

54B Further, based upon the email pleaded at paragraph 51A(v) above, it can be inferred that HSF and the Principal sought to privately influence and persuade the Principal’s Representative not to disclose to the Contractor’s solicitors the existence of, alternatively, the nature and extent of, the private communications between HSF, the Principal and the Principal’s Representative in relation to the Certification Role being undertaken by the Principal’s Representative.
To paragraph 54B:

(a)   it objects to pleading thereto, on the basis that:

(i)    it does not plead a material fact or conclusion of law, but instead purports to allege an inference that it is said “can” arise from the document identified at paragraph 51A(v) of the Amended Defence and Counterclaim, which is not a matter capable of being admitted, denied or not admitted; and

(ii) the allegations therein are vague, embarrassing and ought be struck out because Vestas – Australia and Zenviron do not plead or particularise how it is said such inference “can” arise; and

(b)   under cover of those objections, it denies the allegations therein.

55
In breach of the term pleaded in paragraph 6(a) above, by permitting the communications pleaded in paragraph 51A and 54A above and the other instances referred to in the attached Schedule 2 (whether expressly or tacitly), the Plaintiff:

(a)   improperly interfered in the Principal’s Representative’s performance of the Certification Role under the Contract; and

(b)   accordingly, failed to do all that was necessary to be done on its part to enable the First and Second Defendants to have the benefit of the Contract, being the reasonable and fair determination of their claims in accordance with the Contract as required by clause 31.2.

[Particulars omitted]

~~It denies the allegations in paragraph 55.~~

To paragraph 55:

(a)   it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out:

(i)    for the reasons set out in paragraph 54A(a) above;

(ii) because Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 of the Amended Defence and Counterclaim; and

(b)   under cover of those objections, it denies the allegations therein.

Paragraph 50A of the ADCC relies on conduct constituted by the fact of communications itemised in schedule 2 as routine interference with the Certification Role. At trial, the communications, each of which are admitted in the Reply, can expected to be relied upon in support of a finding that the Principal ‘routinely interfered’. No evidence other than the schedule 2 documents is called for, or relevant to, the allegation in that paragraph.

Paragraph 51 of the ADCC relies on the fact of ‘private communications’ in schedule 2 and the 22 communications itemised at paragraph 51A(a) - (v). The Reply admits each of the communications alleged and says in respect of each that they were communications to which the Contractor was not a party. Nothing other than the documents and the admissions in the Reply will be relevant at trial as to the private nature of the communications.

Paragraph 51A(a) – (v) of the ADCC itemises various communications and, in the case of 51A(m), interactions between HSF, the Principal’s Representative and others. The Reply admits HSF engaged in such communications with the Principal’s Representative. The admission is subject to the production only of the documents. No evidence beyond the tender of the documents relied on and identified in 51A(a) – (v) is relevant to paragraph 51A.

Paragraph 52 of the ADCC alleges the communications pleaded in paragraph 51A and schedule 2 related to the exercise by the Principal’s Representative of the Certification Role. The Reply admits that to be the case, except so far as Post Certification Role Communications (as defined in the Reply) are concerned. It also admits the communications were private communications. No evidence beyond the documents themselves is relevant to allegations concerning performance of the Certification Role in paragraph 52.

Paragraph 53 of the ADCC refers to the provision of ‘comments and advice’ in which HSF was involved in acting on behalf of the Principal. As the ‘comments and advice’ are carefully tied back, in the pleading, to the communications pleaded in paragraph 51A and the ‘other instances’ in schedule 2, no evidence beyond the documents themselves is relevant to paragraph 53.

Similarly, paragraph 54 of the ADCC, which alleges the ‘effect’ of communications at 54(a) – (d), is tied back to, and does not go beyond, the communications in paragraph 51A and schedule 2. No other evidence is relevant to that allegation.

Paragraph 54A of the ADCC alleges that ‘based upon at least the references in the communications pleaded in paragraph 51A above to discussions, meetings and workshops … it may be inferred that …’. So far as this allegation is tied back to paragraph 51A, it is an allegation that will rise or fall based on ‘the references’ in the documents themselves. What is encompassed by the words ‘at least’ is not particularised. At trial, the Contractor will urge the Court that what ‘may be inferred’ as alleged in paragraph 54A(a) – (d) may be inferred from the communications pleaded in paragraph 51A. If the reference to ‘at least’ in the first line of paragraph 54A is intended to be a reference to evidence other than the documents, the nature and content of such evidence, and whether or not the Contractor proposes to call witnesses in support of the inferences which paragraph 54A contends ‘may’ be drawn, was not articulated on the application. I accept the submission on behalf of the Principal that an allegation that inferences ‘may’ be drawn is to be distinguished from an allegation that matters relied upon show that something actually took place. However, the critical point is that the manner in which the paragraph is pleaded does not indicate a requirement for witnesses; the plea depends on documents.

The Reply to paragraph 54A of the ADCC takes objection to the plea. It contends that the allegation is too vague because it does not plead or particularise in full the documents which are said to be the subject of the allegations; nor does it plead or particularise the discussions, meetings or workshops said to have taken place between HSF and the Principal’s Representative. This is not the occasion to determine the adequacy or otherwise of the pleaded allegations. Nonetheless, I agree that paragraph 54A, by including the words ‘at least’, is vague. For the purposes of the present application, all that can be said is that documents are to be relied upon in support of the inference the Contractor contends ‘may’ be drawn in paragraph 54A, and that no other evidence has been identified.

Paragraph 54B of the ADCC is an allegation by reference to one email pleaded in paragraph 54A(v). The only evidence relevant to the plea is the email in paragraph 51A(v), which is admitted.

Paragraph 55 of the ADCC alleges breach. It does so by reference to paragraphs 51A and 54A above, and the other instances referred to in schedule 2. It does not expand the potential scope of relevant evidence.

Paragraphs 63 – 70 of the ADCC, paragraphs forming part of the Contractor’s pleading matrix aide, but not reproduced in these reasons, also contain allegations in relation to the performance by the Principal with the Principal’s Representative’s Certification Role, mainly through the auspices of Mr Ritter and AECOM.

Having carefully reviewed the allegations in the ADCC, and the responses in the Reply to which the attention of the Court was directed on the application, there is no basis to find that it is likely that any witness from HSF will be called on behalf of the Principal in relation to those allegations. The allegations will rise or fall based on the documents. That being the case, I accept that it is highly unlikely that the Principal will call any person from HSF to give evidence at trial in relation to the allegations in question. There would not seem to be any legitimate forensic purpose to do so. The communications and the private nature of them are admitted.

An analysis of the pleadings does not provide support for the Contractor’s claim that HSF is in a position of conflict or that legal practitioners from HSF are likely to be witnesses at the trial of the proceeding.

Consideration

The question for determination is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that HSF should be prevented from acting for the Principal. That is, that HSF should be prevented from acting, in the interests of the protection of the integrity of the judicial process, and the due administration of justice, including the appearance of justice.

An analysis of the paragraphs of the pleading relied upon in argument demonstrates there is no reasonable basis to find that any person from HSF is likely to be called to give evidence at the trial of this proceeding. It follows that the prospect of a solicitor being called to give evidence is not a reason to restrain HSF from acting in this case. Even if there was a prospect of a partner or employee solicitor of HSF being called to give evidence at the trial, in the highly unlikely event that should occur, there is no basis to find that any such person would be a material witness.

The situation here is very different from the facts in Kallinicos and in Mitchell. Unlike the facts in those cases, this is not a case where there is a ‘high degree’ of probability that the solicitors’ evidence and/or conduct will come under scrutiny at trial. There is not a ‘real and substantial’ risk,[66] that a solicitor from HSF may be a material witness and that the solicitor’s evidence may be controversial.
[66]Mitchell v Burrell [2008] NSWSC 772, [15].

I do not accept the submission on behalf of the Contractor that it is inevitable there will be ‘inconsistent evidence and arguments about HSF’s conduct’.[67] The Principal denies interference in the Principal’s Representative’s Certification Role. The fact of private communications, including involving HSF, are admitted. The issue between the parties concerns the consequences of those private communications and whether, matters such as the inference which the Contractor alleges in paragraph 54A may be drawn, are properly drawn. No issue of inconsistency between the position of the Principal and that of its solicitors, HSF, arises.
[67]Defendants’ Submissions, [58].

I accept that the decision in Mitchell is one made without express consideration of the paramount duty of practitioners to the Court. It is also a decision made in a context that does not include the overarching obligations in the Civil Procedure Act 2010 (Vic) that apply to HSF, to the solicitors acting on behalf of the Contractor, and to the parties themselves. However, I do not consider that the absence of express consideration of the paramount duty of practitioners to the Court renders the decision in Mitchell ‘unsound’, as submitted on behalf of the Principal. In that case, Brereton J found there was reason to suppose not only that the solicitor in question would be a witness, and a material one at that, but also that his conduct ‘may come under attack and review’.[68] Those circumstances are very different from those present in this case.
[68][2008] NSWSC 772, [22].

I do not accept the validity of the Contractor’s submission that ‘regardless of whether HSF partners and lawyers give evidence, HSF’s actions will nonetheless be the subject of evidence and close scrutiny at trial, and ultimately submissions and findings by the Court’.[69] I do not accept the submission on behalf of the Contractor that it is inevitable there will be ‘inconsistent evidence and arguments about HSF’s conduct’. The Principal denies interference in the Principal’s Representative’s Certification Role. The fact of private communications, including involving HSF, are admitted. The issue between the parties concerns the consequences of those private communications and whether matters such as the inference which the contractor alleges in paragraph 54A may be drawn is properly to be drawn. No issue of inconsistency between the position of the Principal and that of its solicitors, HSF, arises.
[69]Defendants’ Submissions, [61].

I accept the validity of the Principal’s submission that the main issue in the case is delay. While that is the case, a critical issue of importance in the proceeding is the discharge by the Principal’s Representative of the Certification Role, in particular concerning his evaluation of EOT claims. The focus at trial, and the ‘close scrutiny’ concerning that issue, will be on the performance and discharge by the Principal’s Representative of that role. The Court will be required to make findings about whether he has or has not complied with the requirements of clause 31.2 of the EPC Contract. For that reason, the preparation of the proof of evidence from Mr Rohde will be important.

However, there is no reason to suppose that when preparing Mr Rohde’s proof of evidence any conflicts will arise between the interests of the Principal, its representative Mr Rohde, and the interests of HSF. Each of those persons will have an interest in establishing there was no improper interference with the Certification Role.

I do not consider the risk of a finding that HSF was involved, on behalf of its client, in impermissible interference with the performance by the Principal’s Representative of the Certification Role, as giving rise to a material reputational risk to HSF. The Principal is content for HSF to continue to act on its behalf in the proceeding and indeed wishes that to be the position. It is correct that the evidence of Mr Irvine, in that regard, is a feature not seen in the authorities to which the Court was taken in argument. Due weight is to be given to not depriving the Principal of its solicitors of choice without due cause.

I do not agree that HSF ‘necessarily has a personal stake and keen interest in the outcome of the proceeding well beyond the usual recovery of its fees and the usual interest of doing the best it can for its client.’[70] The alleged reputational risk to HSF, if it exists at all, is very small and not material. It is not a matter that I consider Ms Smethurst was required to address in her affidavit. Putting the alleged reputational risk at its highest, it is possible that at trial a finding is made that the communications upon which the Contractor relies to which HSF was a party properly give rise to a finding of improper interference with the independent Certification Role by the Principal’s Representative. If such a finding were to be made, there is nothing to suggest that it would be accompanied by a finding that HSF acted other than in accordance with its instructions and other than in accordance with what the firm perceived to be in the best interests of the Principal. There is no evidence that in engaging in the communications in question, HSF was acting on a frolic of its own, or was acting other than in accordance with its instructions from the Principal.
[70]Ibid, [64].

The fact that the allegation of interference with the Certification Role by the Principal’s Representative, including via HSF, is an issue in dispute between the parties does not carry the necessary consequence that HSF is materially exposed to financial risk as submitted on behalf of the Contractor. In order for any financial risk to HSF to materialise it will be necessary, first, that there be a finding of wrongful interference by HSF with the Certification Role. If such wrongful interference was pursuant to instructions from the Principal, it would be very difficult to conceive of circumstances in which the wrongful interference by HSF would be actionable on the part of the Principal. But in any case, as submitted on behalf of the Principal, the Contractor would need to overcome a number of steps in the proceeding before that point could possibly be reached. Assuming the Contractor persuades the Court that there has been wrongful interference by HSF and that the consequence of such wrongful interference is that the determinations by the Principal’s Representative must be set aside, the next step that must be accepted in the Contractor’s analysis is that, as a result, time is at large. Next, time being at large, the Contractor must persuade the Court that it is entitled to a reasonable time for extension of the dates otherwise specified for Practical Completion, and that the reasonable time to achieve Practical Completion is such that the amount previously deducted for Delay Liquidated Damages, via the Performance Security, and the further claim for $15,456,850.27, is impacted. Adopting the days in the Delay Aide Memoire as an example only, an additional 475 days for Elaine and an additional 310 days for Yendon would need to constitute a reasonable time for Practical Completion before such an impact on the Principal is likely to materialise.

The Contractor has identified legitimate questions and concerns about the analysis in the Delay Aide Memoire. It is not possible on this application to resolve those questions. What is clear is that there are a number of steps that would need to occur before any risk of action by the Principal against HSF might materialise. Taking a practical and realistic view of the risk, I regard the risk, if any, as both highly contingent and very low. In making that assessment I have had regard to the required steps before any risk might materialise, the lack of any evidence that actions undertaken or communications engaged in by HSF relied on by the Contractor in the proceeding were not authorised by the Principal, and that at least on the scenario demonstrated in the Delay Aide Memoire, significant EOTs (as set out in paragraph 127 above) would need to be shown to be reasonable to enable Practical Completion to be achieved.

I do not attach any weight to the absence of reference to the asserted HSF financial risk issue in the affidavit of Mr Irvine.

Contrary to the submissions of behalf of the Contractor, I do not accept that HSF has ‘skin in the game’, either by reason of the asserted reputational risk, or by reason of the asserted financial risk.

Prior to the commencement of this proceeding, there was no obligation upon the Principal to produce documents to the Contractor. That is so whether those documents were documents going to the issue of the integrity of performance by the Principal’s Representative of the Certification Role, or to other issues. No contractual or other right to the provision of such documents was identified by the Contractor. It follows there is no legitimate basis for criticism of the Principal or, for that matter, of HSF for the refusal to produce documents as requested from the date of the first request on 30 March 2020,[71] until the dates for compliance with the discovery orders made on 21 May 2021.
[71]Defendants, Affidavit of Matthew Edward Croagh, dated 19 August 2021, exhibit “MEC-44”, being the Affidavit of Matthew Edward Croagh sworn 3 August 2020, with the letter from Pinsent Masons dated 30 March 2020 at exhibit “MEC-12” to that Affidavit.

However, there is another aspect of the refusal to produce documents upon which the Contractor relied which I consider relevant. It concerns the denials in the 5 June 2020 letter from HSF and the 10 June 2020 letter from Stuart Liddell, the Chair of the Principal, and the tone and content of those communications.

It was submitted on behalf of the Principal, that the letters of June 2020 to which the Court was taken were letters taken out of context. That was said to be so because they were directed to an allegation of actual interference, and not to the topic of private communications. While that may be so, I think it is too fine a point of distinction on the part of the Principal to say that the difference between a case alleging actual interference, and one alleging interference by private communications not disclosed, provides appropriate justification for the use of language such as ‘manufactured’ and ‘confected’. That is particularly the case in circumstances where those statements were made as part of correspondence refusing access to documents that would have shown the fact of communications.

The letters from HSF on 5 June 2020, and from Mr Liddell on 10 June 2020 made inflammatory statements about the Contractor’s questioning of the integrity of the Certification Role. In submissions, the Contractor was very critical of such statements in circumstances where the authors of the correspondence must be taken to have known of the existence of the HSF documents. The Contractor was also critical that in the face of documents disclosed on discovery, such as those discussed at paragraph 61 above, the Reply denied interference by the Principal with the performance by the Principal’s Representative of the Certification Role.

While I consider the statements made in the June 2020 correspondence were not appropriate, accepting based on the reference to the ‘matter number’ that HSF had a hand in drafting both letters, I do not think the correspondence, in the context of the heated nature of the dispute between the parties, is such that it provides a proper basis to find that a fair-minded and reasonably informed member of the public would conclude the proper administration of justice requires that HSF should be prevented from continuing to act. As Brereton J observed in Kallinicos, fair-minded, reasonably informed members of the public do not conceive that legal representatives are entirely impartial.[72] Most see legal representatives as aligned with the parties whom they represent. On occasion, that alignment may cause or contribute to the extravagant use of language in correspondence. When it does occur, as I consider was the case in June 2020, it reflects interests of legal practitioner and client closely aligned. It does not provide evidence of substance in support of the relief sought in the summons. It is insufficient of itself to support a finding of lack of objectivity, or independence on the part of HSF, such that they should be restrained from acting.
[72][2005] NSWSC 1181; (2005) 64 NSWLR 561, [90].

I do not consider the denials in the Reply reflect adversely on HSF or mean that HSF is in a position of conflict. The HSF documents relied on by the Contractor, and the private nature of the communications, are not in issue. They are admitted in the Reply. The consequences that might flow, or findings that might be made at trial relying on those communications, are quite properly the subject of denials by the Principal.

Dealing with the fact that there has been no challenge to the adequacy of discovery in relation to the HSF documents, senior counsel for the Contractor submitted that it was likely there would be further discovery. While that may turn out to be the case, there is presently no attack on the integrity of the discovery of the HSF documents. There is no dispute in relation to matters such as redactions made to some documents on account of legal professional privilege.[73] While it would have been open to the Contractor to subpoena documents from the Principal’s Representative relevant to his discharge of the Certification Role, the Contractor has not done so. In the circumstances, there is no proper basis to infer that there are further relevant communications involving HSF in existence, or that the Court should proceed on that basis when determining this application.
[73]Defendants, Affidavit of Matthew Edward Croagh, dated 19 August 2021, exhibit “MEC-44”, being the Affidavit of Matthew Edward Croagh sworn 3 August 2020, with a redacted copy of an email with the subject ‘LLWF – notes from weekly call 3.3.20’ at exhibit “MEC-99” to that Affidavit.

While I do not consider HSF ‘vindicated’ by the discovery of the HSF documents by the Principal, the discovery of such documents being what was required by orders for discovery, I do not accept the proposition that the reference to ‘vindication’ in the Principal’s submissions means that HSF considered it required or needed ‘vindication’.

I do not accept the submission on behalf of the Contractor that whether by reason of HSF’s involvement in the June 2020 correspondence, its involvement and that of the Principal in declining to provide documents upon request until required to make discovery, the denials in the Reply, or for any other reason relied upon by the Contractor on this application, that HSF cannot maintain its objectivity and independence or the perception of objectivity and independence required of legal practitioners in proceedings before the Court.

In the course of argument it was submitted on behalf of the Principal that the timing of this application reflected strategic considerations on the part of the Contractor and that I should take that into account in determining the application. Reliance was placed by the Principal on paragraphs 83 – 96 of the affidavit of Mr Irvine made 27 July 2021. In those paragraphs Mr Irvine gave evidence of ongoing disputes between the Principal and the Contractor, including that on 14 July 2021 the Contractor gave notice of what the Contractor stated was a ’Principal Default Notice’ pursuant to clause 38.3(a) of the EPC Contract. The notice stated that the contract works insurance policy effected by the Principal did not comply with schedule 9 of the EPC Contract because the maximum deductible exceeds the prescribed amounts, and therefore constitutes a Principal Event of Default. The notice asserted a requirement for the Principal to cure the default within 10 business days failing which the Contractor would be entitled, subject to provisions of the Tripartite Agreement, to suspend the whole or any part of the works. On the same day, the Contractor issued a notice to the Security Trustee to the EPC Contract alleging the occurrence of a ‘Principal Default’ pursuant to clause 3.1(a) of the Tripartite Agreement, by reason of the alleged interference by the Principal (and those it had retained, including HSF and AECOM), in the Principal’s Representative’s exercise of the Certification Role. The Contractor asserted that because the alleged default was not capable of being remedied, on 25 August 2021 the Contractor would be entitled to accept the Principal’s alleged repudiatory breach and terminate the contract. Also on 14 July 2021 the Contractor issued a notice to the Security Trustee of the Contractor’s intention to suspend performance under the contract if the Principal’s Default was not remedied by 5 August 2021. On 21 July 2021 the Principal responded to the Default Notice and Suspension Notice asserting that the Default Notice did not provide any basis to identify a Principal Event of Default or for the Contractor to suspend performance of the works.

Although the evidence of Mr Irvine shows that around the time this application was initiated there had been a number of other notices and events initiated by the Contractor in relation to the project, it is not appropriate that I draw any inference from the proximate timing of this application, and those events, to question the bona fides of the Contractor in bringing this application.

So far as the information barrier is concerned, I do not find its existence a persuasive consideration on the determination of the application. I do not agree with the submission on behalf of the Contractor that the presence of the information barrier reveals HSF ‘has a problem with…acting’. It seems to me the implementation of the information barrier is a prudent step taken by HSF in circumstances where allegations such as those in issue in this application have been made.

When the arguments in favour of the relief sought on behalf of the Contractor are carefully considered against the issues on the pleadings and the asserted risks contended for, both reputational and financial, to HSF are evaluated, it is clear that this is not a case where the proper administration of justice requires that HSF be restrained from acting. It is highly unlikely any legal practitioner from HSF will be called to give evidence at the trial of the proceeding. This case is not one where the ‘line’ has been crossed, where the solicitor has a personal stake in the outcome of the proceedings, or where the personal reputational interest of the solicitor, the firm’s conduct and integrity will come under attack in the proceedings. The risk of these matters occurring in the present case is very low.

The evidence falls well short of establishing that fair-minded and reasonably informed members of the public would conclude the proper administration of justice requires that HSF be prevented from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.

I accept that the jurisdiction to restrain solicitors from acting is exceptional and to be exercised with caution. However, in this case the evidence does not come close to requiring a balancing of considerations including the weight to be given to the public interest in the litigant not being deprived of the lawyer of his or her choice without good cause, the timing of the application, and the cost, inconvenience and impracticality of requiring lawyers to cease to act. In this case the stage reached in the litigation is such that it would no doubt cause considerable inconvenience and significant cost to the Principal if an order were made restraining HSF from acting. However, this application is not refused in the exercise of discretion. It is refused because no proper basis has been established for the exercise of the jurisdiction which, as correctly recognised by the Contractor, is exceptional. Had jurisdiction to make a restraining order been established, in the exercise of the discretion, for the reasons previously discussed, it would have been appropriate to decline to make an order restraining HSF from continuing to act.

Disposition

The application by summons dated 18 August 2021 is refused. Subject to any submissions the parties may wish to make in relation to the basis of costs, I will order that the Contractor pay the Principal’s costs of and incidental to the summons on a standard basis.

If costs are contended for on any other basis, the parties should file submissions of no more than three pages directed to that issue within seven days.

Paragraph	Defendants’ Amended Defence and Counterclaim	Plaintiff’s Reply and Defence to Counterclaim
The Certification Role under the Contract	Alleged interference
50A	The First and Second Defendants rely upon the attached Schedule 2 generally as setting out a course of conduct throughout the Project by the Principal, the Principal’s solicitors Herbert Smith Freehills (HSF), the Principal’s consultants (including AECOM) and the Principal’s Representative, whereby the Principal routinely interfered with the Principal’s Representative’s performance of the Certification Role and the Principal’s Representative failed to act independently, fairly or reasonably in discharging the Certification Role. Particular instances are pleaded below.	To paragraph 50A: (a) it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that it is a rolled up allegation in which Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 to the Amended Defence and Counterclaim; (b) under cover of that objection, it denies the allegations therein; and (c) it says further that the following communications identified in Schedule 2 to the Amended Defence and Counterclaim related to the Certification Role after it had been performed by the Principal’s Representative (adopting the numbering from Schedule 2 to the Amended Defence and Counterclaim); 1-8, 100, 109, 127-129, 177, 183-184, 205, 221, 222, 241 and 242 (Post Certification Role Communications).
Interference by Principal in Principal’s Representative’s performance of Certification Role via HSF
51	By the instances pleaded more specifically in paragraph 51A below, and by the instances referred to in the attached Schedule 2, spanning from approximately 3 December 2018 to 6 August 2020, HSF (acting on behalf of the Principal) engaged in extensive private communications with the Principal’s Representative in relation to the exercise of the Principal’s Representative’s Certification Role. [Particulars omitted]	To paragraph 51: (a) subject to reference to the documents identified at paragraph 51A and Schedule 2 of the Amended Defence and Counterclaim for their full force and effect, it admits that, between approximately 3 December 2018 and 6 August 2020, Nom Co’s solicitors engaged in the communications identified in paragraph 51A and Schedule 2 of the Amended Defence and Counterclaim with the Principal’s Representative regarding the Certification Role, to which Vestas – Australia and Zenviron were not parties; and (b) it otherwise denies the allegations therein. [Deleted pleading omitted]
51A	By way of summary [51A(a)] to [51A(v)] pleads specific instances of private communications between HSF (on behalf of the Principal) and the Principal’s Representative between the period 4 December 2018 and 11 May 2020. Those specific private communications include email communications and draft documents as well as references made to private meetings and telephone conversations regarding the Principal’s Representative’s determination of EOT and Variation Claims made by the Contractor. For example: (a) [51A(m)] refers to a ‘working group’ convened by HSF on 15 January 2020 with the Principal’s Representative, and representatives of the Plaintiff, to discuss specific EOT and Variation Claims made by the Contractor. (b) [51A(q)] refers to an initial review by HSF on or about 2 March 2020 of an EOT Claim made by the Contractor and a telephone discussion to be held the next day.	To paragraph 51A: (a) subject to reference to the documents identified therein for their full force and effect, it admits that its solicitors engaged in such communications with the Principal’s Representative; and (b) it otherwise does not admit the allegations therein.
52	Each of the communications pleaded in paragraph 51A above, and each of the other instances referred to in the attached Schedule 2, related to the exercise of the Principal’s Representative’s Certification Role.	To paragraph 52: (aa) it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 to the Amended Defence and Counterclaim; (a) under cover of that objection, it admits that the private communications admitted in paragraphs 51(a) and 51A(a), above, and the communications referred to in Schedule 2 thereto, except the Post Certification Role Communications, related to the performance of the Principal’s Representative’s Certification Role under the Contract; and (b) it otherwise does not admit the allegations therein.
53	In providing comments and advice on the First and Second Defendant’s claims (which were communicated privately with the Principal’s Representative as pleaded in paragraph 51A above and those other instances involving HSF referred to in the attached Schedule 2). HSF acted on behalf of the Plaintiff. [Particulars omitted]	To paragraph 53: (aa) it objects to pleading thereto on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 to the Amended Defence and Counterclaim; (a) under cover of that objection, it admits that, in making the communications with the Principal’s Representative admitted in paragraphs 51(a) and 51A(a), above, and the communications referred to in Schedule 2 to the Amended Defence and Counterclaim, except the Post Certification Role Communications, Nom Co’s solicitors acted on its behalf; and (b) it otherwise does not admit the allegations therein.
54	The effect of the communications pleaded in paragraph 51A above and the other instances referred to in the attached Schedule 2 was that: (a) the Principal’s Representative failed to give full disclosure of every communication between the Principal’s Representative and the Plaintiff (or those acting on its behalf) concerning the exercise of the Certification Role; (b) the Principal’s Representative allowed his judgment to be influenced by the Plaintiff (or those acting on its behalf); (c) the First and Second Defendant were prevented from reviewing and/or responding to the matters raised in communications between the Principal’s Representative and the Plaintiff (or those acting on its behalf) concerning the First and Second Defendants’ claims, resulting in unfairness to the First and Second Defendants; and (d) accordingly, the Principal’s Representative failed to act reasonably or to make fair determinations, in breach of clause 31.2 of the Contract.	To paragraph 54: (aa) it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out, in that Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 thereto; (a) under cover of the objection set out in sub-paragraph (aa), above, in relation to sub-paragraph (a); (i) it admits that the Principal’s Representative did not give full disclosure of every communication between the Principal’s Representative and Nom Co (or those acting on Nom Co’s behalf) concerning the exercise of the Certification Role in relation to the claims made by Vestas – Australia and Zenviron which are listed in paragraph 51A~~(a)~~, above, and the communications referred to in Schedule 2 to the Amended Defence and Counterclaim, except the Post Certification Role Communications; and (ii) it otherwise does not admit the allegations therein; (b) ~~it denies the allegations~~ in relation to sub-paragraph (b): (i) in addition to the objection set out in sub-paragraph (aa) above, it objects to pleadings thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out in that Vestas – Australia and Zenviron fail to plead or particularise; (A) which of the communications pleaded in paragraph 51A and otherwise referred to in Schedule 2 of the Amended Defence and counterclaim are said to have operated on the Principal’s Representative such that he allowed his judgment to be influenced by Nom Co (or those acting on its behalf); and (B) how those communications are said to have had that effect; and (ii) under cover of those objections, it denies the allegations therein; (c) under cover of the objection set out in sub-paragraph (aa) above, it does not admit the allegations in sub-paragraph (c); and (d) under cover of the objection set out in sub-paragraph (aa), above, in relation to sub-paragraph (d): (i) it denies the allegations therein; and (ii) it says further that the Principal’s Representative made the correct determination in respect of Vestas – Australia and Zenviron’s claims which are alleged to have been made in breach of clause 31.2 of the Contract.
54A	Further, based upon at least the references in the communications pleaded in paragraph 51A above to discussions, meetings and workshops between HSF and the Principal’s Representative, it may be inferred that: (a) HSF and the Principal’s Representative discussed the merits of the Contractor’s claims and the merits of the assessment to be undertaken in performing the Certification Role; (b) HSF and the Principal’s Representative developed a methodology for, and participated in, the joint review and assessment of the Contractor’s claims with a view to potential disputes and litigation; (c) HSF, acting in the interest of the Principal, sought to privately influence and persuade the Principal’s Representative in performing the Certification Role to adopt positions that were favourable to the Principal and adverse to the Contractor; and (d) The Principal’s Representative at the meetings and workshops and during the discussions was influenced and persuaded, and allowed his independent judgment to be interfered with, by HSF, to adopt positions in performing the Certification Role that were favourable to the Principal and adverse to the Contractor.	To paragraph 54A: (a) it objects to pleading thereto, on the basis that: (i) it does not plead a material fact or conclusion of law, but instead purports to allege inferences that it is said “may” arise from the documents identified at paragraph 51A of the Amended Defence and Counterclaim, which is not a matter capable of being admitted, denied or not admitted; and (ii) the allegations therein are vague, embarrassing and ought be struck out because Vestas – Australia and Zenviron do not: (A) plead or particularise in full the documents which are said to be the subject of the allegation; (B) plead or particularise which inferences it is said may arise from which of the documents identified in paragraph 51A of the Amended Defence and Counterclaim, and how it is said such inferences may arise; or (C) plead or particularise the discussions, meetings or workshops said to have taken place between Herbert Smith Freehills and the Principal’s Representative giving rise to the matters which it is said can be inferred; and (b) under cover of those objections, it denies the allegations therein.
54B	Further, based upon the email pleaded at paragraph 51A(v) above, it can be inferred that HSF and the Principal sought to privately influence and persuade the Principal’s Representative not to disclose to the Contractor’s solicitors the existence of, alternatively, the nature and extent of, the private communications between HSF, the Principal and the Principal’s Representative in relation to the Certification Role being undertaken by the Principal’s Representative.	To paragraph 54B: (a) it objects to pleading thereto, on the basis that: (i) it does not plead a material fact or conclusion of law, but instead purports to allege an inference that it is said “can” arise from the document identified at paragraph 51A(v) of the Amended Defence and Counterclaim, which is not a matter capable of being admitted, denied or not admitted; and (ii) the allegations therein are vague, embarrassing and ought be struck out because Vestas – Australia and Zenviron do not plead or particularise how it is said such inference “can” arise; and (b) under cover of those objections, it denies the allegations therein.
55	In breach of the term pleaded in paragraph 6(a) above, by permitting the communications pleaded in paragraph 51A and 54A above and the other instances referred to in the attached Schedule 2 (whether expressly or tacitly), the Plaintiff: (a) improperly interfered in the Principal’s Representative’s performance of the Certification Role under the Contract; and (b) accordingly, failed to do all that was necessary to be done on its part to enable the First and Second Defendants to have the benefit of the Contract, being the reasonable and fair determination of their claims in accordance with the Contract as required by clause 31.2. [Particulars omitted]	~~It denies the allegations in paragraph 55.~~ To paragraph 55: (a) it objects to pleading thereto, on the basis that the allegations therein are vague, embarrassing and ought be struck out: (i) for the reasons set out in paragraph 54A(a) above; (ii) because Vestas – Australia and Zenviron fail to allege as material facts the matters said to be contained in Schedule 2 of the Amended Defence and Counterclaim; and (b) under cover of those objections, it denies the allegations therein.

[2021] VSC 733

10 November 2021