Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia
[2007] WASC 32
•13 FEBRUARY 2007
LEIGHTON CONTRACTORS PTY LTD -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2007] WASC 32
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 32 | |
| Case No: | CIV:1570/2006 | 5 FEBRUARY 2007 | |
| Coram: | LE MIERE J | 12/02/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | The defendant give further and better discovery of documents in categories 4 and 5 The Commissioner of Main Roads give non-party discovery of documents in categories 3, 4 and 5 The Department of Housing and Works give discovery of documents in categories 2, 4 and 8 | ||
| B | |||
| PDF Version |
| Parties: | LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667) PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Application for further and better discovery Relevance of documents sought to matters in issue Practice and procedure Application for non-party discovery Relevance of documents sought to matters in issue |
Legislation: | Nil |
Case References: | Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 Mulley v Manifold (1959) 103 CLR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Application for further and better discovery - Relevance of documents sought to matters in issue
Practice and procedure - Application for non-party discovery - Relevance of documents sought to matters in issue
Legislation:
Nil
(Page 2)
Result:
The defendant give further and better discovery of documents in categories 4 and 5
The Commissioner of Main Roads give non-party discovery of documents in categories 3, 4 and 5
The Department of Housing and Works give discovery of documents in categories 2, 4 and 8
Category: B
Representation:
Counsel:
Plaintiff : Mr C G Colvin SC
Defendant : Mr J A Thomson
Solicitors:
Plaintiff : Mallesons Stephen Jaques
Defendant : State Solicitor's Office
Case(s) referred to in judgment(s):
Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Mulley v Manifold (1959) 103 CLR 341
(Page 3)
1 LE MIERE J: The plaintiff has applied for an order that the defendant give further and better discovery of documents falling into the categories described in the schedule attached to its chamber summons of 12 January 2007. The plaintiff also applies for orders for non-party discovery by the Commissioner of Main Roads, the Department of Treasury and Finance, the Minister for Planning and Infrastructure, the Minister for Housing and Works, the Department of Housing and Works, the Australian Bureau of Statistics and Access Economics.
The action
2 The plaintiff is the contractor for construction of the Perth component of the railway extension between Perth and Mandurah. The contract is contained in a Project Deed entered on 14 February 2004. The Project Deed provides for adjustments to the progress payments to the plaintiff by a prescribed rise and fall mechanism. The manner in which rise and fall is to be calculated is contained in Annexure G of the Project Deed. The rise and fall calculation prescribed in Annexure G depends upon the application of certain indexes. One index prescribed for use by Annexure G relates to changes in the costs of materials. The prescribed index was published by the ABS and is described in Annexure G as a "price index of materials used in building other than house building". This index is referred to by the parties as the "table 42 index".
3 The ABS ceased publishing the table 42 index on 30 June 2004. Paragraph 5 of Annexure G to the Project Deed provides that if an index is discontinued or the basis on which an index is calculated is altered there must be substituted the nearest index consistent with the intention of Annexure G so as to give effect to Annexure G.
4 The defendant and Main Roads made a joint submission to the ABS to reinstate the discontinued index and subsequently to create a replacement index. In October 2005 the ABS made available an index described as the "price index of materials used in building other than house building, Perth, table 48 of catalogue 6427.0", which the parties sometimes refer to as the Replacement Index. The plaintiff pleads that the Replacement Index was created by ABS at the request of the defendant, using a methodology developed and agreed between ABS and the defendant. There is evidence to support that contention.
5 The plaintiff says that the intention of Annexure G is to provide for indexation by using future variations in the prevailing costs of labour and materials of the general character used in carrying out the contracted works. If the table 42 index is discontinued, a substitute materials index
(Page 4)
- which most nearly gives effect to the intention of Annexure G must be used in place of the table 42 index. If there is no reasonable substitute materials index, then, as a matter of implication, an index must be substituted which achieves "reasonable indexation" in the sense of giving effect to the intention of Annexure G. The plaintiff says there is no reasonable substitute materials index and therefore the appropriate index to be substituted is one which achieves "reasonable indexation".
6 The primary relief sought by the plaintiff is an order appointing an independent expert or referee to report to the court as to the appropriate method of reasonable indexation of progress payments to be made under the Project Deed so as to give effect to the intention in Annexure G, including if necessary the use of a single index rather than separate indexes for each of labour and materials. Alternatively, the plaintiff seeks a declaration that an index known as the "Department of Housing and Works Building Cost Index – Perth, non-residential building index" ("DHWBI") or alternatively an index known as the "Davis Langdon Tender Price Index – commercial for Perth" ("Davis Langdon") or alternatively an index known as the "Output of the General Construction Industry, non-residential building construction (class 4113) (Western Australia) index available in table 16 of ABS catalogue 6427.0 producer price indexes" ("4113WA"), alternatively an index known as "Rawlinsons Building Price Index – Perth" ("Rawlinsons"), alternatively an index known as the "Output of the General Construction Industry, non-residential building construction (class 4113) (national) index available in table 16 of ABS catalogue 6427.0 producer price indexes" ("4113 national") should be substituted for both the materials index and the labour index referred to in Annexure G. Alternatively the plaintiff seeks a declaration that DHWBI, alternatively Davis Langdon, alternatively 4113WA, alternatively Rawlinsons, alternatively 4113 national should be substituted for the materials index referred to in Annexure G.
7 The defendant says that the Replacement Index, alternatively the "price index of materials used in house building, Perth, table 17 of catalogue 6427.0 published by the ABS" ("HB Index") should be substituted for the table 42 index.
Further and better discovery sought from plaintiff
8 Shortly before the hearing of this application the plaintiff amended its application. The plaintiff now seeks further and better discovery from the defendant of the following categories of documents:
(Page 5)
- "1. All contracts for the construction of part of the South West Metropolitan Railway to which the defendant is a party which contain a rise and fall provision.
1A. All contracts entered into on or after 1 July 2003 for the construction of works requiring payments of $10 million or more to which the defendant is a party which contain a rise and fall provision.
2. All documents concerning any general decision or policy as to the use of indexes in contracts of the kind referred to in paragraphs 1 and 1A above, including any such documents considering the discontinuance of the Table 42 index by the ABS.
4. Communications between the Australian Bureau of Statistics or its legal advisers on the one hand and the defendant or its legal advisers on the other which relates to any matter in issue in the proceedings.
5. Correspondence between the defendant and other WA Government agencies (including but not limited to the Department of Main Roads, the Department of Treasury and Finance and the Department of Housing and Works) which relate to any matter in issue in the proceedings.
6. Internal correspondence within the defendant which relates to any matter in issue in the proceedings.
7. Diaries of officers of the defendant which relate to any matter in issue in the proceedings, including but not limited to the diaries of Reese Waldock, Richard Dorham Mann and Geoff Watson."
9 I will consider each category in turn.
Category 1
10 It is the plaintiff's case that the intention of Annexure G was to provide for a reasonable allowance for rise and fall by reference to the general character of the labour and materials to be used in carrying out the works, albeit without requiring the calculation of actual cost differences. The notion of reasonableness, the plaintiff says, is to be assessed by reference to, amongst other things, industry practice in Perth adopted by quantity surveyors and contracting parties in providing reasonable
(Page 6)
- adjustments for cost movements for undertaking such works in their day-to-day practice.
11 The plaintiff says that the defendant is an entity which engages in work of a similar nature to that on this project with other parties. As such, the plaintiff says it is relevant to know the nature of the rise and fall provisions the defendant has in its contracts with other parties, including the index that it uses, and the basis on which it decides to use a particular index in particular contracts.
12 In Mulley v Manifold (1959) 103 CLR 341 at 345 Menzies J said that:
"[D]iscovery is a procedure directed towards obtaining a proper examination and determination of [the issues between the parties] – not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary."
13 There are cases in which the evidence of what happened in one transaction or event may be relevant to the question of what happened in another. This is not such a case.
14 The plaintiff says that the indexes used for rise and fall in other contracts to which the defendant is a party are relevant because they bear upon what represents reasonable indexation. However, the only issue raised concerning what constitutes reasonable indexation is the plea in par 19 of the statement of claim that reasonable indexation is to be undertaken having regard to, amongst other things, the industry practice in Perth adopted by quantity surveyors and contracted parties in providing reasonable adjustments for cost movements for undertaking such works in their day-to-day practice. The defendant submits, and I accept, that the plaintiff does not seek any adjudication by the court on the matters referred to in par 19. The plaintiff says that these are matters for a court appointed expert, if the plaintiff is correct in its construction of the Project Deed.
15 I am not satisfied that the documents in categories 1 and 1A relate to any matter in question in the action. I will not order further and better discovery of the category 1 and 1A documents.
(Page 7)
Category 2
16 The plaintiff says it is relevant to know whether the defendant in using table 42 in its other contracts, replaced table 42 with a house building or other than house building index when table 42 was discontinued. This is said to be relevant because it goes to the question of what industry practice in Perth was adopted by contracting parties in providing for reasonable adjustments for cost movements for undertaking works in their day-to-day practice as pleaded in par 19(b) of the statement of claim.
17 For the reasons stated in relation to categories and 1 and 1A, the category 2 documents do not relate to any matter in question in the action.
Category 4
18 In his affidavit sworn 31 January 2007, Mr Egan, the solicitor with the conduct of the matter on behalf of the defendant, swore, in effect, that documents in this category either do not exist, are not relevant to the issues in the proceedings or are privileged. Documents in this category must necessarily relate to any matter in issue in the proceedings. In his oral submissions, supported by a document entitled "broad categories of discovery sought", counsel for the defendant said that documents in this category had been wholly discovered but privilege claimed for correspondence between the State Solicitor's Office and ABS and its solicitors. Counsel for the defendant invited me to decide the issue of privilege at this time. I decline to do so. The defendant should give discovery of all of the documents in this category, including those for which privilege is claimed. If the plaintiff disputes the defendant's claim to privilege then that is the appropriate time at which to decide whether the documents are privileged or to make an order for their production and inspection. The defendant should give further and better discovery of documents in this category.
Category 5
19 The defendant says that it has given discovery of documents in this category and may provide further discovery to the extent relevant. The defendant should give further and better discovery of documents in this category.
Category 6
20 Prima facie the defendant's affidavit of discovery is conclusive. Before the Court will make an order for further and better discovery, or
(Page 8)
- for discovery of specific documents, it must have reasonable grounds for being fairly certain that there is or has been in the possession or power of the defendant, a document relating to matters in question in the action that has not been discovered.
21 The plaintiff says that the defendant has discovered only two items of internal correspondence and in comparison the plaintiff has discovered multiple internal e-mails. The plaintiff says that the determination of a replacement index has been in issue for a significant period of time and there are some significant financial consequences for the parties depending upon which index is the proper replacement index. In such circumstances, it says, it is unlikely that the defendant would have only two items of internal correspondence particularly in light of the work that the defendant and the ABS did together in creating the Replacement Index. The plaintiff submits that the defendant has misconceived the case and taken an erroneous view of what is relevant and this has led to the defendant failing to discover relevant documents.
22 In his oral submissions, supported by the "broad categories of discovery sought" document, counsel for the defendant maintained that the defendant has wholly discovered internal correspondence which relates to any matter in issue in these proceedings. I am not satisfied that there are reasonable grounds for being fairly certain that the defendant has or has been in the possession, custody or power of any document relating to matters in question in the action in category 6 that has not been discovered. I will not order further and better discovery of that category of documents.
Category 7
23 The same considerations apply to this category as apply to category 6. I will not order further and better discovery of this category of documents.
Commissioner of Main Roads
24 The plaintiff now seeks discovery of the following categories of documents:
"2. Documents concerning any general decision or policy as to the use of indexes in contracts for the construction of works which contain a rise and fall provision, including any such documents considering the discontinuance of the table 42 index by the ABS.
(Page 9)
- 3. All correspondence between the Commissioner and John Stranger of the John Stranger partnership regarding the construction of an index to replicate or replace table 42.
4. All correspondence between the Commissioner and the ABS relating to the construction of an index to replicate or replace table 42.
5. All documents, correspondence, memos or reports relating to the replication or replacement of table 42."
25 I will consider each category in turn.
Category 2
26 This category of documents is similar to category 2 in relation to the defendant. I decline to order discovery of this category of documents for the same reasons.
Category 3
27 It appears that John Stranger was involved with, commissioned by or gave advice to the Commissioner for Main Roads in relation to the manufacture of a new index when table 42 was discontinued.
28 Essentially, counsel for the Commissioner says that documents in this category have been wholly discovered except for privileged documents. I will order the Commissioner of Main Roads to give discovery of category 3 documents. I will not decide questions of privilege at this time.
Category 4
29 Counsel for the Commissioner agreed that the documents in this category are relevant to matters in issue in the proceedings and that the Commissioner should discover these documents. Counsel says that privilege is claimed for some of the documents. I decline to deal with the question of privilege at this time. Any questions of privilege should wait until the Commissioner has claimed privilege and the claim is disputed by the plaintiff. I will order discovery of documents in this category.
Category 5
30 This category of documents raises issues similar to those raised by categories 3 and 4. I will order the Commissioner to give discovery of this category of documents.
(Page 10)
Department of Treasury and Finance
31 The plaintiff now seeks discovery of the following documents:
"1. Documents created or published since 2003 concerning any general decision or policy as to the use of the Department of Housing and Works Building Cost Index (DHWBI) as a measure of the inflationary factors associated with the construction industry."
32 The plaintiff says, amongst other things, that all documents which comment upon DHWBI as a measure of the inflationary factors associated with the construction industry and which refer to DHWBI are relevant to the question of whether the DHWBI provides for a reasonable allowance of rise and fall assessed by reference to what the plaintiff relies upon at par 19(a) and par 19(b) of the statement of claim.
33 The plaintiff further says that the defendant's witness statements specifically refute that DHWBI is an appropriate index for projects of this kind and that it is therefore relevant to the proceedings to know the use to which the substitute index is to be put, circumstances in which it is used, how it is prepared and in what contracts it is to be used. The plaintiff says that the basis for the defendant's evidence is a matter which the plaintiff is entitled to test by way of cross-examination or otherwise and is therefore a matter in dispute between the parties.
34 A document which is only material to the credit of a party is not discoverable.
35 Before making an order for non-party discovery the Court must consider the appropriateness of the application in order to avoid putting a non-party to unnecessary difficulty and expense. The inconvenience to the non-party must be weighed against the prejudice to the party if the documents are not made available in the litigation. An order will be made if it is in the interests of justice in resolving an issue in the proceeding or it is likely to help to further the proper resolution of the litigation.
36 Giving discovery of the documents requested would put the Department to significant inconvenience and expense. There is not a sufficient likelihood that the documents sought contain information that will either advance the plaintiff's case or damage that of the defendant or put the plaintiff on a chain of enquiry that would lead to such information.
37 I will not order discovery of this category of documents.
(Page 11)
Minister for Planning and Infrastructure
38 The plaintiff now seeks discovery of the following documents:
"1. Documents created or published since 2003 evidencing an evaluation or analysis of the inflationary factors associated with the construction industry in Western Australia generally and Perth in particular, including but not limited to the Minutes of Meetings of the New MetroRail Steering Committee."
39 I am satisfied that the minutes of the meetings of the New MetroRail Steering Committee, or at least parts of them, are relevant.
40 The defendant has provided discovery of documents from the Minister, including excerpts from the minutes of the New MetroRail Steering Committee. The category of documents specified is very wide. I am not satisfied that there is a sufficient likelihood that they contain information that would advance the plaintiff's case or damage the defendant's case to justify the order sought. Furthermore, the matters deposed to by Richard Damian Farrell, Principal Policy Officer within the office of the Minister, in his affidavit sworn 31 January 2007, lead me to conclude that it would be oppressive to require the Minister to give non-party discovery of the documents sought. I decline to order the Minister to give non-party discovery.
Minister for Housing and Works
41 The plaintiff seeks discovery of the following categories of documents:
"1. Documents created or published since 2003 which evidence an evaluation or analysis of the Department of Housing and Works Building Cost Index (DHWBI) as a measure of the inflationary factors associated with the construction industry; and
2. Documents created or published since 2003 which in any way relate to the use to which DHWBI is put, including documents concerning any general decision or policy as to the use of DHWBI as an index in contracts with the construction of works."
42 I have given consideration to the documents in both these categories. They cover a very wide field. Having regard to the inconvenience and
(Page 12)
- expense to the Minister of giving discovery of these categories of documents I do not consider they are sufficiently relevant to any matter in question in the proceedings to justify an order for discovery. It would be oppressive to do so. I decline to order the Minister for Housing and Works to give non-party discovery.
Department of Housing and Works
43 The plaintiff seeks discovery of the following categories of documents:
"2. All documentation pertaining to the manner in which the DHWBI is constructed, including the methodology used, the source of data and the data collection periods;
3. All documentation concerning any general decision or policy as to the use of the DHWBI by the Government of Western Australia;
4. All written and email communications regarding the DHWBI from the Public Transport Authority of Western Australia or the Minister for Planning and Infrastructure with respect to the New MetroRail City Project;
8. Notes of information collated or supplied for the purposes of calculating the DHWBI;
11. An electronic copy of all documents (other than privileged documents) contained in the folder 'Cabinet/BCI folder' of Mr Steven Craig Luce's Groupwise e-mail account."
44 I will consider each category.
Category 2
45 The plaintiff's case, in part, is that the proper replacement index is DHWBI, or alternatively other indexes. The plaintiff says that all documents which comment upon DHWBI as a measure of the inflationary factors associated with the construction industry and which refer to DHWBI are relevant to the issue of the proper replacement index. In my view that is to state too widely the documents which are relevant in relation to the DHWBI index.
(Page 13)
46 The plaintiff further says that witness statements from Steven Luce and John Stranger, provided by the defendant, raise the relevance of the documents sought. It is said that each of them gives evidence that DHWBI was not intended to be used for projects of this kind. It is further said that the basis for that evidence is a matter which the plaintiff is entitled to test by way of cross-examination or otherwise and is, therefore, a matter in dispute between the parties.
47 I am satisfied that the category 2 documents are relevant according to the test set down in Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55.
48 The Department says that it has already provided relevant documents to the plaintiff. The plaintiff maintains that not all relevant documents have been provided. In the circumstances, it is appropriate that the Department should give non-party discovery of category 2 documents.
Category 3
49 This category of documents raises similar issues to those raised in relation to category 2 of the documents sought from the defendant. For similar reasons I decline to order discovery of those documents.
Category 4
50 I find that these documents are sufficiently relevant, having regard to the Peruvian Guano test (supra). The Department says that it has already provided relevant documents to the plaintiff. It is appropriate that the Department give non-party discovery of this category of documents for the same reasons as apply to category 2.
Category 8
51 Notes of information collated or supplied for the purposes of calculating the DHWBI relate to a matter in question. The plaintiff says and the defendant denies that the DHWBI is a suitable replacement index. It is likely that the documents sought contain information that advances the plaintiff's case or damages the defendant's case or throws light on the question whether the DHWBI is a suitable replacement index.
52 Mr Luce on behalf of the Department acknowledges that the Department has possession of documents within this category but swears that, in effect, the Department has no such documents in addition to those provided to the defendant's solicitors. That is a relevant consideration but does not preclude the making of an order for non-party discovery. In the
(Page 14)
- circumstances it is appropriate that the Department gives discovery of category 8 documents. Otherwise it will be conjecture whether the defendant has discovered all the category 8 documents in the possession, custody or power of the Department.
Category 11
53 In her affidavit sworn 20 December 2006 Miss Eversden, a solicitor assisting in the conduct of the matter on behalf of the plaintiff, swore that Nathan Landis, a solicitor for the plaintiff, attended a meeting on 26 September 2006 at the Department's offices. Mr Landis informed Miss Eversden that at the meeting it was agreed between the parties present that the Department would provide, amongst other things, an electronic copy of all documents (other than privileged documents) contained in the folder "Cabinet/BCI folder of Mr Luce's Groupwise e-mail account". In an affidavit sworn 30 January 2007 Mr Egan denies that there was any agreement to provide the documents referred to.
54 The evidence before me does not provide reasonable grounds for being fairly certain that the folder referred to contains documents relating to matters in question in the action. I will not order discovery of that category of documents.
ABS and Access Economics
55 These requests for non-party discovery have all been resolved between the plaintiff and the parties concerned. It is not necessary to give further consideration to the applications.
Conclusion
56 I will make orders for further and better discovery for non-party discovery as follows:
(1) The defendant give further and better discovery of documents in categories 4 and 5.
(2) The Commissioner of Main Roads give non-party discovery of documents in categories 3, 4 and 5.
(3) The Department of Housing and Works give discovery of documents in categories 2, 4 and 8.
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