LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity) v Thiess Pty Ltd

[2022] NSWSC 317

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity) v Thiess Pty Ltd [2022] NSWSC 317
Hearing dates:	7-8 March 2022; further submissions 11, 15 & 18 March 2022
Date of orders:	23 March 2022
Decision date:	23 March 2022
Jurisdiction:	Equity - Commercial List
Before:	Stevenson J
Decision:	Plaintiffs granted leave on terms to rely on further expert evidence
Catchwords:	PRACTICE AND PROCEDURE – whether expert evidence served permitted by earlier order – whether such evidence is evidence in chief – whether plaintiffs require and should be granted leave to rely on that evidence – on what terms should such leave be granted
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural rulings
Parties:	LCT-MRE Nominees Pty Ltd (as trustee of the LCT MRE Trust and in its personal capacity) (First Plaintiff) LCT-MRE Pty Ltd (Second Plaintiff) Thiess Pty Ltd (First Defendant and First Cross-Claimant) John Holland Pty Ltd (Second Defendant and Second Cross-Claimant) CIMIC Group Ltd (Third Defendant) WSP Australia Pty Ltd formerly Parsons Brinckerhoff Australia Pty Limited (First Cross-Defendant) ACN 006 475 056 Pty Limited formerly Parsons Brinckerhoff International (Australia) Pty Limited (Second Cross-Defendant)
Representation:	Counsel: T Breakspear SC with L Shipway (Plaintiffs) P S Braham SC with N Simpson (Defendants) J Giles SC (First and Second Cross-Defendants) Solicitors: Allens (Plaintiffs) Corrs Chambers Westgarth (Defendants) John Winter & Slattery (Cross-Defendants)
File Number(s):	2017/00077595

Judgment

1. The plaintiffs are the operators, or “concessionaires” of the Lane Cove Tunnel (the “Tunnel”). The plaintiffs’ concession will expire in 2048, when the Tunnel will be returned to the State.

2. The defendants were the builders of the Tunnel pursuant to a Design and Construct Contract (the “Contract”) made in December 2003 with entities that have now, by deeds of novation, assigned their rights under the Contract to the plaintiffs.

3. The Tunnel was cut through rock, primarily sandstone. The rock ceiling of the Tunnel was sprayed with a type of concrete called “Shotcrete”. The shotcrete was intended to provide a lining that protected the exposed rock, to act as a barrier to prevent rock fragments falling onto the roadway, and to divert groundwater flowing through the sandstone to drains, avoiding it dripping onto the roadway. The shotcrete was intended to be adhered to the rock. It contains steel fibre reinforcement to give it flexural strength. It was required, under the Contract, to perform its functions for a 100 year “Design Life”.

4. The Tunnel opened in March 2007.

5. The plaintiffs commenced these proceedings 10 years later, in March 2017.

6. The plaintiffs allege a number of defects in the Tunnel, including relating to the shotcrete. The plaintiffs’ case is that the shotcrete is defective such that:

1. the defendants are in breach of a warranty in the Contract that the Tunnel would be, and would remain at all relevant times, fit for its intended purpose; and

2. the shotcrete will need to be replaced, refurbished and significantly maintained at a cost (including revenue loss) in the order of $300 million if that work can be done before the expiry of the plaintiffs’ concession in 2048; and more, up to some $600 million, if the work cannot be done in that time.

7. In the five years since the proceedings commenced, the case has progressed slowly. The proceedings have now reached the stage where:

1. the defendants have made a cross-claim against their design engineers on the project in which, in effect, they seek to pass on to the cross-defendants the case made against the defendants by the plaintiffs; and

2. the plaintiffs and the defendants have served their evidence in chief.

8. The cross-defendants have not yet served their evidence. There has been no formal discovery, although some documents have been exchanged. No hearing date is yet allocated.

9. A reason for the delay is the central relevance of engineering opinion to the issues at hand and the limited access that the plaintiffs are able to give the engineering experts to the Tunnel. The Tunnel is an operating asset, in use 24 hours a day, 7 days a week. For safety and other reasons, inspection and testing within the Tunnel can occur only during planned overnight closures, between approximately 10 pm to 5 am. The defendants in the past have been obliged to approach the Court for orders for such access. Evidently, access can now be made available every six weeks.

10. A difficult question of case management has now arisen.

11. The question is whether the plaintiffs are entitled to, or should be given, leave to rely on expert reports served in August 2021 from Mr John Braybrooke, a geotechnical engineer who has made earlier reports for the plaintiffs in the proceedings, and from Dr Stefan Bernard, a concrete engineer; ^[1] together with a number of affidavits from persons who undertook laboratory testing from May 2021 on which both Mr Braybrooke and Dr Bernard relied in their reports (the “Testing Affidavits”) (together, the “New Evidence”).

    1. Short supplementary reports were served in November 2021, but they raise no separate issues.

12. That issue gives rise to these questions:

1. does the New Evidence, in whole or in part, comprise evidence in chief served in the face of a guillotine order made by consent on 24 May 2019 requiring the plaintiffs to serve their evidence in chief by 19 September 2019?

2. Is the New Evidence in any event permitted by an order made by consent on 30 April 2021?

3. If “no” to (b), should the plaintiffs be granted leave to rely on the New Evidence? and;

4. If so, on what terms as to the plaintiffs’ ability to deploy any further evidence on the shotcrete issue, and as to costs, should leave be granted?

13. The issues are raised by the plaintiffs’ Notice of Motion filed on 16 November 2021. Their difficulty is illustrated by the fact that the parties have adduced over 2,000 pages of evidence on the question, and that argument on this point took well over a day.

Decision

14. The plaintiffs should be permitted to rely on the New Evidence, but on the terms set out below.

The plaintiffs’ case

15. The plaintiffs rely on provisions in the Contract that the defendants:

1. must finance, plan, design and construct the Project Works in accordance with the Contract; ^[2]

   2. Clause 2.1(a)(i).

2. warranted that the design of the Tunnel would:

1. satisfy the requirements of the “Scope of Works and Technical Criteria” (“SWTC”) and of the Contract;

2. be and remain at all times fit for its intended purpose; and

3. be completed in accordance with the requirements of the Contract; ^[3]

3. warranted that the Project Works would, on completion, be fit for their intended purposes and remain at all relevant times fit for their intended purposes. ^[4]

   3. Clause 8.1(b).

   4. Clause 8.1(d)(i)-(ii).

16. The Contract also provided that the Tunnel:

1. have a minimum Design Life of 100 years; ^[5] and

2. was to be impermeable and water must not drip or flow onto or over the roadway pavements and other areas in the Tunnel. ^[6]

   5. SWTC s 5.2(b)(i).

   6. SWTC s 5.8.

17. In the List Statement the plaintiffs allege:

“60. The [Tunnel] Defects exist in the [Tunnel] and include the Defects described in paragraphs [61], [63], [65] and [67] below.

61. Defects exist in the Tunnel Elements ^[7] in the [Tunnel], including:

7. The tunnel structures, supports, structural linings and secondary linings.

(a) failure of elements of the tunnel structures, supports and linings;

(b) failure of areas of the shotcrete lining;

(c) de-bonding of areas of the shotcrete lining from the surrounding rock;

(d) cracks in the shotcrete lining, including plastic shrinkage or drying shrinkage cracks significantly wider than the 0.3mm specified in the Design Documentation;

(e) seepage (where the outer surface of the shotcrete lining drips water or is wet consistently); and

(f) inadequate and/or ineffective provision for drainage behind the shotcrete

(Tunnel Defects).

Particulars

At the time of filing the List Statement, after 9 years of the Design Life, Tunnel Defects have:

(i) been identified in 201 locations in the eastbound mainline tunnel;

(ii) developed along approximately 76% of the length of the eastbound mainline tunnel;

(iii) been identified in 188 locations in the westbound mainline tunnel;

(iv) developed along approximately 65% of the length of the westbound mainline tunnel; and

(v) also been identified in the Western Ventilation Tunnel and the Marden Street Ventilation Tunnel.

These particulars may be amended following further investigations or disclosure in the proceedings.

62. By reason of the matters set out in the preceding paragraph, the Tunnel Elements:

(a) require replacement, refurbishment and/or significant maintenance;

(b) have not achieved and will not achieve a 100-year Design Life or, where applicable, a 35-year Design Life; and

(c) are not and will not remain at all relevant time fit for their intended purposes.”

18. The plaintiffs allege that these matters amount to a breach by the defendants of the Contract that has caused, and continues to cause, the plaintiffs’ loss, including the cost of bringing the Tunnel Elements into conformity with the requirements of the Contract. ^[8]

The course of events

8. List Statement at pars C69-C71.

The defendants’ original List Response

19. On 11 December 2017 the defendants filed their List Response. In the Response, the defendants admitted that “in places within the [Tunnel] there has been … cracking of shotcrete [and] seepage” but otherwise “[did] not admit” the matters at par C61^[9] of the List Statement.

    9. Set out at [17] above.

20. The List Response made no reference to whether any obligation that the plaintiffs might have in regard to the alleged Defects was a matter it was required to address as part of its obligations under the Contract to carry out Operation and Maintenance Work.

Mr Braybrooke’s August 2018 Report

21. On 3 August 2018 Mr Braybrooke made his first report.

22. He summarised his findings as follows:

“1. A number of defects have been observed in the Lane Cove Tunnels, including cracking, de-bonding and failure of significant sections of the shotcrete lining, as well as water seepage through the lining and water dripping onto the road pavement.

2. Based on my observations during my inspections of the tunnels and the documents I have reviewed (including records of observations by GHD^[10] and others over the last four years), I have formed the view that, in light of those defects:

a. the affected tunnel elements fall short of the technical requirements of the Design and Construction Deed and of the Scope of Works and Technical Criteria for the tunnels;

b. the design for the tunnel elements and the tunnel elements themselves are not fit for purpose; and

c. the tunnel elements are affected by poor workmanship.”

10. See [25] below.

23. Mr Braybrooke also opined:

“4. As I explain in the report, most of the lining of the tunnels comprises rock bolts installed on a pattern together with steel-fibre-reinforced shotcrete. Where the shotcrete is 50mm thick (which is generally the case), the shotcrete has been designed to rely solely on adhesion to the rock for its stability. In many areas this adhesion has been lost. The shotcrete has numerous cracks open to more than 0.3mm and in places the shotcrete is bulging away from the underlying rock or has fallen.

5. In my opinion, in order to comply with the applicable requirements in the Design and Construction Deed and the Scope of Works and Technical Criteria, a thicker shotcrete lining is required along with a second means of attachment, such as mesh or spider plates, to ensure the shotcrete lining remains in place.”

24. Mr Braybrooke said that his observations showed that the Tunnel Elements were affected by de-bonding of the shotcrete, cracking of the shotcrete in excess of the 0.3mm maximum width permitted, seepage including onto the road pavement, and inadequate drainage and poor workmanship, in that the shotcrete had not been applied to the specified thickness in some areas.

25. As to the de-bonding of the shotcrete, Mr Braybrooke referred to numerous inspections and occasions of hammer tap testing and bore hole inspection carried out by an organisation called “GHD”; as well as the result of his own inspections. Mr Braybrook did not, however, request any destructive bond strength reports, evidently on the basis that he did not then think such tests were desirable or appropriate. I make no criticism of Mr Braybrooke in this regard.

26. Mr Braybrooke identified four “potential deterioration mechanisms”.

27. He said the “most important deterioration mechanism” was “the potential for differential movement between the rock and the shotcrete”. This opinion was based on Mr Braybrooke’s long experience dealing with Hawkesbury Sandstone, his knowledge of stresses recorded in the literature concerning Hawkesbury Sandstone, his recognition of “stress and convergence mechanisms” recognised in what he called “the Contractor’s Durability report” and his (and GHD’s) observation of horizontal shear cracks in the Tunnel that, in his opinion, bespoke stress-related movement.

28. The only measurement of such “differential movement” was recorded in relation to monitoring prisms which Mr Braybrooke said “are often used as part of sophisticated surveying techniques to measure slight movement over time in tunnels and similar structures”. Mr Braybrooke identified a single monitoring point that gave rise to a different value of any significance.

29. The second mechanism was the “acidity of the groundwater”. That opinion was based on statements made in “the design report” that groundwater in Hawkesbury Sandstone is “slightly acidic” and Mr Braybrooke’s own knowledge, born of lengthy experience, that chloride content “increases significantly if the Hawkesbury Sandstone is overlain by Ashfield Shale, which is the case for a significant portion of the Tunnel”.

30. The only water sample that Mr Braybrooke relied on was one taken by a third party in November 2016 from a single location in the Tunnel. That sample apparently indicated a particular chloride content.

31. The third mechanism identified by Mr Braybrooke was the action of the chloride causing internal “salt weathering” of the “surface of sandstone faces”. This opinion was based on Mr Braybrooke’s experience of salt weathering in Hawkesbury Sandstone over the years and published research on this question.

32. The evidence of the existence of salt weathering in the Tunnel to which Mr Braybrooke referred was a “powdery texture” found on a single core drilled by GHD.

33. The final mechanism identified by Mr Braybrooke was delamination which he described as being a reaction of carbon dioxide with free calcium hydroxide within the concrete mass, known as “carbonation”, which “locally destroys the high alkalinity … of the concrete”. Mr Braybrooke did not identify any testing or sampling upon which he relied to give that opinion.

The 24 May 2019 guillotine order

34. On 24 May 2019, by consent, the Court made orders for the service by the plaintiffs of the balance of their evidence in chief, including a further report from Mr Braybrooke which is not presently relevant, by 13 September 2019.

35. The following further order was made, by consent:

“The plaintiffs are not entitled to rely on lay or expert evidence in chief in relation to the Tunnel Elements claims (excluding evidence of temporary rectification works paid for by the plaintiffs after 1 September 2019) not filed or served by 19 September 2019 without leave of the Court.”

Complaint by the defendants as to the adequacy of the plaintiffs’ pleading

36. After the plaintiffs’ evidence was served, there was a contest in correspondence between the solicitors for the plaintiffs and the defendants as to the manner in which the plaintiffs had pleaded breaches of the Contract in connection with the shotcrete.

37. In the course of that correspondence, the plaintiffs’ solicitors contended that “as the List Statement makes plain”, the plaintiffs relied upon “performance warranties” given by the defendants in the Contract including, particularly, that the design of the Tunnel would “be and remain at all relevant times fit for their intended purposes”; and that the existence of the “Tunnel Defects represented clear breaches of the performance warranties”. In effect, the plaintiffs’ solicitors contended that the existence of the “Tunnel Defects” themselves bespoke a breach of the contractual warranties by the defendants.

38. That dispute was resolved by the plaintiffs providing particulars. The defendants contend that these particulars tied the plaintiffs’ breach case to the evidence that had been served to date, relevantly in Mr Braybrooke’s August 2018 report.

39. The result is that the ambit of the plaintiffs’ warranty claim can now only be discerned by reference to the List Statement and to a number of letters providing particulars. I will return below to whether that is a satisfactory means by which the plaintiffs’ case should continue to be articulated.

40. In correspondence, the defendants’ solicitors cavilled with the plaintiffs’ solicitors’ contention set out at [37] above and, evidently, for the first time, raised the question of whether such problems as may exist in the Tunnel were matters to be dealt with as matters of “Operation and Maintenance” rather than as a breach of warranty by the defendants.

41. Thus, on 5 December 2019 the defendants’ solicitors wrote to the plaintiffs’ solicitors:

“The mere existence of a performance failure does not mean, necessarily, that there has been a design failure or a construction failure.

For example, if the alleged performance failure is a consequence of a failure of the [Operation and Maintenance] Contractor to perform its obligations under the [Operation and Maintenance] Deed, then the alleged performance failure is not a consequence of any design defect or any construction defect.

Your clients’ case, having been brought on the basis of alleged performance failures, must now be confined to it. Our clients wish to avoid the circumstance where, at a later date, your clients seek to advance a new case (for example, through their evidence in reply) on the basis of otherwise otiose paragraphs of the List Statement.” (Emphasis added.)

42. On 11 December 2019, the plaintiffs’ solicitors replied:

“You have raised in your letter the possibility that one or more of the ‘performance failures’ alleged by our clients may be ‘a consequence of a failure of the [Operation and Maintenance] Contractor to perform its obligations under the [Operation and Maintenance] Deed’ and therefore not a consequence of a design or construction defect for which your clients are responsible. No contention to that effect appears in your clients’ List Response. An amendment to the List Response to make such an argument would require leave and can be expected to be opposed by our clients given our clients’ evidence in chief has already been served.

You have also raised in your letter a concern that our clients might, in reply or otherwise, seek to advance a new case alleging unheralded deficiencies in design or construction. Our clients have no intention of doing so but of course they reserve their rights to respond by reply in the usual way to any new issues raised by your clients’ responsive evidence.”

The defendants’ expert reports

43. In November 2020 the defendants served expert reports from Dr Kurt Zeidler, a geotechnical engineer, and Mr Michael van Koeverden, a civil engineer with a speciality in concrete.

44. Both expressed the opinion that there were no “discernible features” (Dr Zeidler’s expression) or “visible signs” (Mr van Koeverden’s language) of service deterioration or corrosion in the shotcrete.

45. Dr Zeidler’s overall conclusion was:

“Based on my field observations, as well as my review and analyses of various Expert reports, my opinion is that the [Tunnel] is currently in a stable state. Provided the maintenance procedures set out in the [Operations and Maintenance Manual] are followed, the Tunnel Elements will continue to be fit for their intended purpose and achieve the 100-year Design Life (subject to the limited number of exceptions identified).”

46. Both Dr Zeidler and Mr van Koeverden dealt with Mr Braybrooke’s four “potential deterioration mechanisms”.

47. As to what Mr Braybrooke had described as the “most important deterioration mechanism”, being “potential for differential movement between the rock and the shotcrete”, Dr Zeidler said that “the movement monitoring data did not support the supposition of any consistent movement into any specific direction over the observation time period”. Dr Zeidler pointed to the fact that Mr Braybrooke had only identified a single prism monitoring point of any significance and stated that “one single monitoring point in one single reading can be discarded as none of the other monitoring points in the vicinity showed any ‘movement’ which [is] anywhere close to the 5.4mm or exceed the reading accuracy (reading tolerance).”

48. As to Mr Braybrooke’s mechanism of “acidity of the ground water”, Dr Zeidler commented that Mr Braybrooke had relied on only one test and asserted that Mr Braybrooke’s opinion that it was necessary to install a continuous waterproof membrane to protect the newly installed shotcrete was “neither supported by the single test nor by any additional testing to verify the allegation”. Mr van Koeverden went further and said that the groundwater in the vicinity of the Tunnel was not “slightly acidic but rather ranges from slightly basic to slightly acidic.”

49. As to Mr Braybrooke’s third mechanism of “salt weathering”, Dr Zeidler opined that “the mere description of the presence of powdering texture in one single sample is insufficient to conclude that salt weathering is ongoing” in the Tunnel. Mr van Koeverden expressed a similar view and said that he disagreed that “the single test result from a drain sample is representative of the chloride levels in the groundwater.”

50. As to Mr Braybrooke’s final mechanism, carbonation, Dr Zeidler and Mr van Koeverden pointed to the fact, to use Mr van Koeverden’s words, “Mr Braybrooke does not provide any examples where he has seen this mechanism within the shotcrete liner”.

51. Dr Zeidler also opined that, subject to a small number of exceptions which he set out, that:

“It is my opinion that the overwhelming majority of features described in the various reports as well as observed by me, can be addressed by the procedures laid out in the [Operation and Maintenance Manual] to keep the [Tunnel] fit for its intended purpose and achieve the 100-year Design Life”.

52. Dr Zeidler was here expressing an opinion about the matter that the defendants’ solicitors has raised on 5 December 2019 and that, on 11 December 2019, the plaintiffs’ solicitors had pointed out was not asserted in the defendants’ List Response. ^[11]

    11. See [41] and [42] above.

53. During March 2021, the defendants’ solicitors foreshadowed a proposed amendment to the List Response to raise this issue.

54. On 10 March 2021, the plaintiffs’ solicitors foreshadowed that the plaintiffs would be serving a further report from Mr Braybrooke.

55. A draft List Response was circulated on 19 March 2021.

56. On 30 March 2021 the plaintiffs’ solicitors circulated a “coring and testing protocol” prepared by Mr Braybrook and Dr Bernard in which they stated that they had been:

“[I]nstructed to review the expert reports of Dr Kurt Zeidler and Michael van Koeverden and determine whether further destruction/non-destructive sampling and/or testing is required in the [Tunnel] in order to prepare a report responsive to the matters raised in those reports

…

We do consider that such sampling/testing is required. This document describes the proposed bond strength testing of the steel-fibre-reinforced shotcrete in Lane Cove Tunnel, in response to the expert reports of Dr Kurt Zeidler and Michael van Koeverden”.

57. The day before, the plaintiffs’ solicitors advised the defendants and cross-defendants that arrangements had been made to close the Tunnel between 19 and 22 April 2021 and invited the defendants and cross-defendants to arrange for their representatives to attend “in order to observe the work contemplated by the Braybrooke & Bernard coring and testing protocol”.

The 30 April 2021 orders

58. On 30 April 2021, by consent, the Court made the following orders:

“1. The defendants / cross-claimants are to serve an amended List Response and Cross-Claim by 7 May 2021.

2. The plaintiffs are to serve any lay evidence in response to the defendants’ amended List Response and Cross-Claim.

3. The defendants / cross-claimants are to pay the costs thrown away by the amended List Response and Cross-Claim.

4. The plaintiffs are to serve evidence in the form of further expert reports of Mr Braybrooke and / or Dr Bernard in reply to the reports of the defendants’ experts, Dr Kurt Zeidler and Mr Michael van Koeverden, and / or in response to the amendments to the defendants’ amended List Response by 30 July 2021.” (Emphasis added.)

The Amended List Response

59. On 7 May 2021, the defendants filed the Amended List Response anticipated by the 30 April 2021 orders.

60. The Amended List Response now responded to the allegations made at pars C60 and C61 of the plaintiffs’ List Statement as follows: ^[12]

    12. In revision mode showing the additions and deletions from the original List Response.

“51.   As to paragraph C.60 of the List Statement, the Defendants:

(a) repeat and rely upon the matters referred to in paragraphs C.33A above and C.52 to C.58 below;

(b) say that the alleged Defects described in paragraph C.61 of the List Statement:

(i) are not ‘Defects’ within the meaning of the [Contract]; and

(ii) are items in respect of which the Concessionaire was and still is required to address as part of its [Operations and Maintenance] Work under the Project Deed and the [Contract] pursuant to the provisions referred to in paragraph 33A above;

(ba) says that the P&M Work referred to in subparagraph (b)(ii) was not done; and

(c) otherwise do not admit deny the matters contended in C.60 of the List Statement.

52. As to paragraph C.61 of the List Statement, the Defendants:

(a) admit that, in places within the [Tunnel] there has been:

(i) cracking of shotcrete;

(ii) seepage; and

(aa) say that the alleged Defects described in paragraph C.61 of the List Statement and in subparagraph (a) above:

(i) are not ‘Defects’ within the meaning of the [Contract];

(ii) are items in respect of which the Concessionaire was and still is required to address as part of its [Operations and Maintenance] Work under the Project Deed and the [Contract] pursuant to the provisions referred to in paragraph 33A above; and

(iii) says that the [Operations and Maintenance] Work referred to in subparagraph (aa)(ii) was not done; and

(b) otherwise do not admit deny the matters contended in paragraph C.61 of the List Statement.” (Emphasis in original.)

61. The allegations at par 52 in the List Statement were particularised by referenced to nominated paragraphs of Dr Zeidler’s and Mr van Koeverden’s report including, in the case of Dr Zeidler, his conclusion that I have set out at [45] above.

62. During argument, Mr Braham SC, who appeared with Ms Simpson for the defendants, accepted, albeit without finally committing the defendants to this position, that although the Amended List Response denies the existence of any “Defects” at all, ^[13] a more accurate description of the defendants’ position is likely to be that, whether or not such “Defects” exist, they are matters to be addressed by the plaintiffs as Operation and Maintenance matters. If that is the defendants’ position, the Amended List Response should be further amended to reflect this.

    13. See C51(b)(i).

The testing

63. Thereafter, the testing foreshadowed in Mr Braybrooke’s and Dr Bernard’s “coring and testing protocol” proceeded.

64. This sampling and testing comprised:

1. 100 core samples, being:

1. 87 core samples utilised for pull tests, and additional tests;

2. 13 core samples utilised for point load tests;

2. 27 efflorescence samples (including encrustations and stalactites);

3. 2 sandstone samples;

4. 4 other samples (brown slime, concrete slab and jersey barrier scraping);

5. 9 water samples; and

6. 13 types of testing, including “pull testing” which measures the bond strength between the shotcrete and the underlying substrate.

65. The defendants and cross-defendants did not accept the plaintiffs’ invitation to participate in this testing.

66. The results of this testing are contained in the Testing Affidavits and referred to in the August 2021 reports of Mr Braybrooke and Dr Bernard.

67. Mr Braybrooke’s August 2021 report is expressed to be in reply to that of Dr Zeidler.

68. Mr Braybrooke identified “key areas of disagreement” with Dr Zeidler particularly as to:

1. “the nature and extent of the progressive deterioration mechanisms (which are often not discernible from a visual inspection) that are at work in the [Tunnel]”; and

2. “the sufficiency of the [Operation and Maintenance Manual] repair methods to address those deterioration mechanisms.”

69. Mr Braybrooke continued:

“Having regard to the areas of disagreement between us, following receipt of Dr Zeidler’s report I arranged for some further testing to be done. The testing was aimed at identifying the nature and prevalence of the deterioration mechanisms at work and especially on how the deterioration that has been identified to date (such as the loss of bond strength) might be expected to progress or worsen in the future. I arranged these tests in collaboration with Dr Stefan Bernard, who I understand to be a specialist in shotcrete.”

70. Mr Braybrooke responded to Dr Zeidler’s contentions concerning the extent to which the “Defects” could be addressed by the plaintiffs under the Operation and Maintenance Manual procedures; and to that extent, the report is certainly in reply to Dr Zeidler’s evidence.

71. However, Mr Braybrooke has also deployed the sampling and testing to support certain aspects of his earlier reports.

72. For example, in support of his opinion that the shotcrete is debonding, Mr Braybrooke caused 85 core samples to be pull tested for bond strength of the shotcrete in situ. This was testing that could have been undertaken at the time of Mr Braybrooke’s earlier report.

73. Further in support of his opinion that shotcrete is affected by “salt weathering”, Mr Braybrooke arranged for chloride and sulphate analyses of a number of sandstone/shotcrete samples to be undertaken and for electron microscopy tests to be undertaken on a further five samples. This, again, was testing that could have been undertaken earlier.

74. Further, in relation to the sulphate sample, Mr Braybrooke appears to be advancing a new case and to be arguing that the weathering is due to the presence of sulphate ions.

75. Dr Bernard’s report is also expressed to be in reply to that of Dr Zeidler and that of Mr van Koeverden. However, the following passage from Dr Bernard’s report makes clear that he is relying on the New Evidence as he stated:

“… my opinions are based on information that was not available to either Mr van Koeverden or Dr Zeidler, both of whom appear not have done any testing of their own (notwithstanding that Dr Zeidler requested such testing be undertaken … ) but have based their opinions on evidence prepared by others (that did not include invasion sampling of the lining such as coring) and visual evidence obtained during walk-through inspections.”

76. It is true that Dr Zeidler and Mr van Koeverden had not based their reports upon any testing of their own. But the basis of their criticism of Mr Braybrooke was that he had engaged in insufficient testing to justify the conclusions that he expressed.

The supplementary reports of Mr Braybrooke and Dr Bernard

77. In early November 2021 the plaintiffs served further supplementary reports of Mr Braybrooke and Dr Bernard.

78. These reports clarified an issue relating to an opinion that Mr Braybrooke had expressed as to whether the rectification scope applied only to areas where shotcrete had been applied to a depth of 50mm, whereas Mr Braybrooke’s earlier reports had referred to all of the shotcrete areas in the Tunnel. These reports did not, in substance, take matters otherwise any further and little attention was paid to them in submissions.

The plaintiffs’ List Statement including “the plaintiffs’ consolidated particulars”

79. On 10 December 2021, the plaintiffs’ solicitors circulated a copy of the plaintiffs’ List Statement incorporating the particulars provided in earlier correspondence and with a “red line mark-up” showing further particulars added arising from Mr Braybrooke’s and Dr Bernard’s reports of August 2021.

80. A copy of that document is attached to these reasons.  

81. The “red line mark-up” to this document shows the plaintiffs’ case in its List Statement, that is its case in chief, now incorporates many of the matters contained in Mr Braybrooke’s and Dr Bernard’s August 2021 reports.

Does the New Evidence comprise evidence in chief?

82. The New Evidence was doubtless prompted by the criticisms made by Dr Zeidler and Mr van Koeverden. And, as I have said, Mr Braybrooke’s and Dr Bernard’s August 2021 reports are expressed to be in reply to those of Dr Zeidler and Mr van Koeverden.

83. To the extent that Mr Braybrooke and Dr Bernard respond to Dr Zeidler’s and Mr van Koeverden’s contentions to the effect that any problems that may exists in the Tunnel can be dealt with as Operation and Maintenance matters, their reports can be seen to be in reply.

84. But to the extent that Mr Braybrooke and Dr Bernard rely on the Testing Affidavits to augment the opinions earlier expressed by Mr Braybrooke, the position is less clear. The August 2021 reports are responsive to the reports of Dr Zeidler and Mr van Koeverden in the sense that they seek to meet the criticisms made in those reports. But as they are based on the testing recorded in the Testing Affidavits, they seek to bolster the evidence given in chief by Mr Braybrooke and are to that extent, in substance, reports in chief.

85. The form of the List Statement circulated last December shows to what extent this new material has now found its way into the plaintiffs’ case in chief.

Is the New Evidence permitted by the 30 April 2021 order?

86. In the same way, to the extent that Mr Braybrooke and Dr Bernard respond to Dr Zeidler’s and Mr van Koeverden’s contentions about Operation and Maintenance matters, they can be seen to be, for the purpose of the 30 April 2021 orders, “in reply” to those reports and “in response” to the amendments in the List Response.

87. Again, it appears to me the position is less clear to the extent that Mr Braybrooke and Dr Bernard rely on the Testing Affidavits. They are a “reply” to Dr Zeidler’s and Mr van Koeverden’s report in the sense that they seek to respond to the criticisms made in those reports. But to the extent that they are based on the Testing Affidavits, they are now seeking to augment the plaintiffs’ evidence in chief.

88. The substance of the matter is, evidently, that Mr Braybrooke did not think it necessary to engage in the testing now recorded in the Testing Affidavits until he saw the criticisms made by Dr Zeidler and Mr van Koeverden about the absence of such testing. It may well be, as Mr Breakspear SC, who appeared with Mr Shipway for the plaintiffs, submitted, that Mr Braybrooke was entitled to express his earlier opinions notwithstanding the absence of the testing now revealed in the Testing Affidavits. That is not a matter about which I need to express any opinion on this interlocutory application. The fact is that the plaintiffs have now commissioned the testing and seek to rely upon its results as part of their evidence in chief.

89. Further, as Mr Braham and Ms Simpson pointed out in written submissions, otherwise than in presently immaterial respects, the New Evidence does not address the reasoning of the defendants’ evidence or point out errors or matters of disagreement. Rather, the New Evidence advances further evidence of the mechanisms on degradation of the shotcrete advanced in chief, including of a different chemical weathering mechanism, sulphate ions, not hitherto addressed by the defendants’ experts.

90. The fact that the evidence is, to that extent, truly new is revealed by the fact that the plaintiffs’ solicitors have suggested a process by which the defendants’ experts can respond to the New Evidence.

Should the plaintiffs have leave to rely on the New Evidence?

91. Nonetheless, I have concluded that, to the extent that it is necessary for the plaintiffs to have leave to rely on the New Evidence, I should grant that leave.

92. There is no doubt that granting such leave will cause real prejudice to the defendants and to the cross-defendants.

93. I see no reason to doubt the following submissions made by Mr Braham and Ms Simpson on behalf of the defendants:

“[T]here is a real prejudice in allowing the plaintiffs to recast their factual case. The defendants spent most of 2020 arranging visits to the tunnel in the limited available windows, by lay and expert witnesses, including bringing Dr Zeidler from Europe twice. That effort produced very focused evidence, addressing the plaintiffs’ evidence in chief. If the plaintiffs are permitted to rely on the additional evidence, much of that effort will be wasted, and the defendants will be required to return to square one in preparing expert evidence to respond to the new case. Witnesses will need to be brought back into the country, new witnesses will have to be engaged to respond to [Dr] Bernard, access to the tunnel will need to be scheduled (noting that in the past that has never been as simple as is now suggested by Mr Rudge, and has required court orders on two occasions) and new expert and potentially lay evidence will need to be prepared. There will be a large cost, costs thrown away, and delay. The existence of pandemic related restrictions on travel and congregating in groups will make the process more difficult and expensive.

Additionally, the defendant will now be required to pass the new case on the cross defendant, with whatever additional delay that will entail.”

94. The cross-defendants are doubtless in a similar position.

95. Further, as Mr Braham and Mr Giles SC (who appeared for the cross-defendants) emphasised in oral submissions, it is now almost 20 years since the date of the Contract, and 15 years since the Tunnel opened. The further delay that will inevitably follow from the plaintiffs having an entitlement to rely upon the New Evidence will compound the problems that must now exist because of the lengthy period of time that has passed since the occurrence of the events against which the defendants’ and the cross-defendants’ liability will be assessed. Further, throughout that further period, the defendants and cross-defendants, and their insurers, will need to make appropriate provisions for any potential liability.

96. However, as serious as those matters are, my conclusion is that the prejudice that would be caused to the plaintiffs in not permitting reliance on the New Evidence is potentially greater.

97. Were the plaintiffs to be unable to rely on the New Evidence, they would, in substance, not be able to deal with the defendants’ (and presumably the cross-defendants’) case concerning the Operation and Maintenance questions; and would, additionally, be deprived of a means by which to adduce evidence as to what, truly, may be the cause of the defects which the plaintiffs’ experts have identified in the Tunnel.

98. Further, there is a question of the public interest in having identified the true cause of any defect in a major piece of infrastructure used by motorists every moment of the day.

On what terms should the plaintiffs have leave to rely on the New Evidence?

99. To remedy the prejudice that will be caused to the defendants and cross-defendants by reason of the plaintiffs being permitted to rely on the New Evidence, I propose to impose conditions upon the plaintiffs’ ability to rely on the New Evidence, in an endeavour to allay that prejudice to the extent possible.

99. The first condition relates to any further expert evidence that the plaintiffs might in future seek to deploy.

100. Mr Breakspear submitted, and I accept, that the plaintiffs are faced with “evolving facts that are not within its control, either as to their manifestation or necessarily the timing or their identification”. Mr Breakspear said:

“This is an evolving situation for my client, and so from the beginning the evidentiary exercise involved evolving facts that had to be updated and identified.”

102. However, there must be a limit to which the “evolution” of the plaintiffs’ case against the defendants and thus the defendants’ case against the cross-defendants, can be permitted, in the context of litigation which will have, ultimately, a finite conclusion: a final hearing.

103. As I have mentioned, the Court has already made a guillotine order in relation to the plaintiffs’ evidence in chief.

104. The making of that order has proved ineffective to prevent the defendants, and thus the cross-defendants, being placed in the position that I have recorded in these reasons.

105. I have received submissions from the parties as to the form of order that should be made.

106. The defendants proposed an order to the effect that the plaintiffs, either directly or by their solicitors, not, without first seeking leave:

1. take any step to commission further evidence from any expert concerning the cause or extent of any “Tunnel Defects” (as that term is defined in the plaintiffs’ List Statement) save to the extent that evidence is evidence in reply in relation to concrete sections of the Tunnel, the Vermitex lining to the tunnel and/or in relation to construction methodology; ^[14] or

2. perform, or have performed any further testing on Tunnel elements for the purpose of these proceedings.

   14. The words following the close of parentheses were suggested by the submissions in reply and are, I assume, uncontroversial; there was no debate before me concerning those matters.

107. I was initially attracted to that form of order. However, on reflection, I can see force in the plaintiffs’ submission that such an order may be “an improper interference with the plaintiffs’ operation and management of its asset”. As the plaintiffs submitted “investigation and testing of tunnel elements may be necessary to identify or address matters of safety and is, in any event, part of prudent tunnel maintenance and operation”.

108. I think the plaintiffs are correct to submit that any order should be directed to the commissioning of “evidence”.

109. Accordingly, I propose to order that:

The plaintiffs, either directly (or by solicitors) not, without first seeking leave, take any step to commission further evidence for the purposes of these proceedings concerning the cause of any Tunnel Defects (as that term is defined in the List Statement).

110. The plaintiffs submitted that any order to the above effect should be confined to further evidence from Mr Braybrooke and Dr Bernard. I see no reason to so limit the order.

111. There must also be cost consequences of the plaintiffs being permitted to rely on the New Evidence.

112. First, the plaintiffs must pay the defendants’ and the cross-defendants’ costs of the plaintiffs’ Notice of Motion filed 16 November 2021. I propose to fix those costs as a gross sum under s 98(4) of the Civil Procedure Act 2005 (NSW).

113. In my opinion, it is also necessary to make an order concerning the costs incurred by the defendants and cross-defendants in responding to Mr Braybrooke’s earlier reports.

114. The defendants propose that I make an order that:

“ … pay all costs incurred by the defendants and first and second cross-defendants in responding to the evidence contained in the reports dated 3 August 2018, 21 December 2018, 31 May 2019 and 10 September 2019 prepared by John Braybrooke with such costs to be paid on a lump sum basis and forthwith.”

115. I think an order in those terms would go beyond that necessary to compensate the defendants by reason of the events that I have set out in these reasons.

116. The plaintiffs propose the following orders:

“ORDER that the plaintiffs pay any costs incurred by the defendants in respect of Dr Zeidler and Mr Van Koeverden responding to the evidence contained in the expert report dated 3 August 2018 prepared by Mr Braybrooke, thrown away by reason of the grant of leave to rely on the expert reports of Mr Braybrooke dated 4 August 2021 and 5 November 2021 and of Dr Bernard dated 2 August 2021 and 5 November 2021, as agreed or assessed.

ORDER that the plaintiffs pay any costs incurred by the first and second cross-defendants in respect of Dr Diederichs and Mr Munn responding to the evidence contained in the expert report dated 3 August 2018 prepared by Mr Braybrooke, thrown away by reason of the grant of leave to rely on the expert reports of Mr Braybrooke dated 4 August 2021 and 5 November 2021 and of Dr Bernard dated 2 August 2021 and 5 November 2021, as agreed or assessed.”

117. I am persuaded that a “costs thrown away” order to this effect is appropriate. However, I see no reason to confine the order by reference to the nominated defendants’ and cross defendants’ experts. It is obvious that wider costs have been thrown away. Insofar as those costs are legal costs, they should be assessed on the ordinary party-party basis. I see no justification for an indemnity costs order. However, insofar as those costs are disbursements, expert fees and the like, the order should make clear that it is directed to the actual costs incurred.

118. It may be that the defendants and cross-defendants will not be a position, for the moment, to determine what costs have been thrown away by the plaintiffs having leave to rely upon the further reports.

119. Nonetheless, I propose to order that such costs be assessed and payable forthwith, thus enabling the defendants and cross-defendants to proceed to assessment as soon as they are in a position to do so.

120. I was initially attracted to the idea of making a gross sum costs order in relation to the costs thrown away. However, on reflection I fear that such a course would impose upon the parties, and on the Court, a burden of predictive analysis that would be little different from the usual process of costs assessment.

121. I therefore propose to make an order to the effect proposed by the plaintiffs, but deleting reference to the named experts, adding the words “assessed and payable forthwith” and otherwise reflecting what I have said at [117].

122. Finally, I will need to have an appropriate assurance from the plaintiffs about the provision of access to the Tunnel to the experts retained by the defendants and cross-defendants. I will invite submissions as to the manner in which that assurance can be given to the Court.

The pleadings

123. I propose to case manage these proceedings and to allocate a hearing date as soon as the parties are in a position to give the Court a reliable estimate as to the time by which the matter will be ready for hearing, and the likely time that will be required for the hearing.

124. In the meantime, I propose to make directions to ensure that the plaintiffs’ entire case is recorded in one document, being an Amended List Statement (rather than, as present, recorded in the List Statement and letters of particulars and expert reports). A document along the lines of that circulated by the plaintiffs’ solicitors last December may be a good starting point.

125. The matter to which I have referred at [62] concerning the defendants’ Amended List Response should also be addressed.

Conclusion

126. The parties should confer and agree on the orders and directions necessary to give effect to these reasons and further to progress the matter.

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Endnotes

Amendments

23 March 2022 - Amendment made to case name

24 March 2022 - Amendment made to correct minor typographical errors.

Decision last updated: 24 March 2022