McConnell Dowell Constructors (Aust) Pty Ltd v Cardno (Qld) Pty Ltd - [2019] QSC 320

SUPREME COURT OF QUEENSLAND

CITATION:

McConnell Dowell Constructors (Aust) Pty Ltd v Cardno (Qld) Pty Ltd & Anor [2019] QSC 320

PARTIES:

MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD

ACN 002 929 017
(plaintiff)

v
CARDNO (QLD) PTY LTD

ACN 051 074 992
(first defendant)
ARUP PTY LTD
ACN 000 966 165
(second defendant)

FILE NO:

BS No 7046 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

10 and 11 June 2019

JUDGE:

Bradley J

ORDER:

1.   Each of the parties is to prepare a draft order with directions for disclosure and an exchange of witness summaries for the parts of the plaintiff’s claim in paragraphs 35, 35A, 53, 58, 121, 140 and 145 of the Fourth Amended Statement of Claim filed 1 March 2019 (FASC) dealing with the alleged effect of the respective pre-bid work of the first defendant and the second defendant on the price at which the plaintiff bid for the contract to design and construct the Gold Coast Light Rail project.

2.   The parties are to confer about their respective draft orders on or before 7 February 2020.

3.   The parties are to submit to the Court an agreed order or, in the absence of agreement, each party’s draft order by 21 February 2020.

4.   Each of the parties is to prepare a draft order with directions for the determination by one or more referees to be appointed by the Court of the plaintiff’s claims in paragraphs 68 to 99 and 184 to 202 of the FASC and the counterclaims of the first and the second defendant.

5.   The parties are to confer about their respective draft orders on or before 7 February 2020.

6.   The parties are to submit to the Court an agreed order or, in the absence of agreement, each party’s draft order by 21 February 2020.

7.   The application filed 17 May 2019 (court document 99) is otherwise dismissed.

8.   Costs in the cause.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – GENERALLY – TRIAL – MODE OF TRIAL – ASSESSOR, SPECIAL REFEREE ETC – SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS – SEPARATE DECISION OR DETERMINATION – where the plaintiff has brought claims in excess of $300 million against the first and second defendants in relation to work each undertook on the design of elements of the Gold Coast Light Rail project, which the plaintiff alleges it relied upon prior to submitting its bid to design and construct the project – where the proceeding is of considerable scope, complexity and importance to the parties – where the plaintiff applies to refer some questions of fact to a referee – where the application is opposed by the defendants – whether a referral would assist in achieving the just and expeditious resolution of the real issues in the proceeding at a minimum expense

Uniform Civil Procedure Rules 1999 (Qld), r 5,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QSC 320
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the case of McConnell Dowell Constructors (Aust) Pty Ltd v Cardno (Qld) Pty Ltd, the plaintiff sought to refer certain questions of fact to a referee in an attempt to expedite the resolution of the proceedings, which involved claims exceeding $300 million related to the design work undertaken by the defendants on the Gold Coast Light Rail project. The defendants opposed the plaintiff's application, raising concerns about the potential for separate determinations of breach and reliance issues, as well as the possibility of inconsistent findings by the referee or judge.

The court examined the plaintiff's proposal to determine separate questions of fact, which aimed to filter out pre-bid claims by identifying whether any of the defendants' work was found to be incomplete or inaccurate, or if the information in the data room did not identify such inaccuracies. The court noted that the proposed questions would not address causation or reliance issues and might result in inconsistent findings if determined by a judge. The court also considered the potential for the separate question process to be employed at any stage of the proceeding.

After evaluating the submissions from both parties, the court decided to indicate a view on the management of the proceeding with the goal of achieving a just and expeditious resolution of the real issues at a minimum expense. The court made an order to progress the stage one issues and directed the parties to prepare draft orders for disclosure and witness summaries, as well as for the determination of certain claims by one or more referees.

The court's final orders included directives for the parties to prepare draft orders for disclosure and witness summaries, as well as for the determination of certain claims by one or more referees. The court dismissed the plaintiff's application to refer questions of fact to a referee and ordered costs in the cause.

Orders

Orders of the court

1. Each of the parties is to prepare a draft order with directions for disclosure and an exchange of witness summaries for the parts of the plaintiff’s claim in paragraphs 35, 35A, 53, 58, 121, 140 and 145 of the Fourth Amended Statement of Claim filed 1 March 2019 (FASC) dealing with the alleged effect of the respective pre-bid work of the first defendant and the second defendant on the price at which the plaintiff bid for the contract to design and construct the Gold Coast Light Rail project.

2. The parties are to confer about their respective draft orders on or before 7 February 2020.

3. The parties are to submit to the Court an agreed order or, in the absence of agreement, each party’s draft order by 21 February 2020.

4. Each of the parties is to prepare a draft order with directions for the determination by one or more referees to be appointed by the Court of the plaintiff’s claims in paragraphs 68 to 99 and 184 to 202 of the FASC and the counterclaims of the first and the second defendant.

5. The parties are to confer about their respective draft orders on or before 7 February 2020.

6. The parties are to submit to the Court an agreed order or, in the absence of agreement, each party’s draft order by 21 February 2020.

7. The application filed 17 May 2019 (court document 99) is otherwise dismissed.

8. Costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Cardno, expressed a particular concern about the breach issues being determined before or separately from the reliance issues. There was some force in these submissions. Conclusions The various separate questions proposed by MCD do not and were not intended to deal with the whole of the issues as to whether Cardno or Arup was liable to MCD for any of the claimed damages or compensation. MCD’s proposed questions would not deal with causation or reliance issues at all. MCD’s proposed questions could reduce the scope of matters in issue only to the extent that any of the defendants’ work was to be found not to be incomplete or inaccurate (as MCD alleges) or if the information in the data room did not identify that any of the documents was incomplete or inaccurate. MCD would then fail on that pre-bid claim and it would not be necessary to consider it any further in the proceeding. Understood in this way, MCD’s separate questions were to identify and exclude pre-bid claims by applying two early specific filters.[30] They would “filter” the pre-bid claims to eliminate those unable to survive a determination about the available data or about the extent of each defendant’s pre-bid obligations. If MCD were to be wholly successful on the separate questions, the scope of the remaining matters in issue would be unaltered. [30]MCD’s proposal ought not be understood as an expression that it lacks confidence in its pre-bid claims. It approaches the questions as a means of defeating contentions raised by the defendants at an early stage of the proceeding. It is not the role of a separate question to filter a party’s claims. As the submissions for Cardno and Arup also identified, if the MCD questions were determined by a judge, there would be a risk that the determination might involve a finding about the credit of a witness. If the witness were to be called to give further evidence at a later stage of the proceeding, the judge might be asked not to her the later part of the proceeding. These difficulties with the separate question proposal might not arise if the “filtering” was accomplished by a referee or a single expert. The separate question process may be employed at any time, before or after a trial. These reasons should not be understood as limiting or excluding the possibility that such a process – including the determination of a separate question by a judge – from further consideration in any later case management decision. However, having considered the oral and written submissions, I propose to indicate a view about the manner in which the proceeding will be managed, with the objective of the just and expeditious resolution of the real issues in the proceeding at a minimum expense.Stage one directions An order was made after the June hearing providing directions to progress the stage one issues. By complying with the directions, the parties will reveal whether there is any dispute of real substance about the available data.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McConnell Dowell Constructors (Aust) Pty Ltd v Cardno (Qld) Pty Ltd & Anor [2019] QSC 320
PARTIES:	MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD ACN 002 929 017 (plaintiff) v CARDNO (QLD) PTY LTD ACN 051 074 992 (first defendant) ARUP PTY LTD ACN 000 966 165 (second defendant)
FILE NO:	BS No 7046 of 2015
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	10 and 11 June 2019
JUDGE:	Bradley J
ORDER:	1. Each of the parties is to prepare a draft order with directions for disclosure and an exchange of witness summaries for the parts of the plaintiff’s claim in paragraphs 35, 35A, 53, 58, 121, 140 and 145 of the Fourth Amended Statement of Claim filed 1 March 2019 (FASC) dealing with the alleged effect of the respective pre-bid work of the first defendant and the second defendant on the price at which the plaintiff bid for the contract to design and construct the Gold Coast Light Rail project. 2. The parties are to confer about their respective draft orders on or before 7 February 2020. 3. The parties are to submit to the Court an agreed order or, in the absence of agreement, each party’s draft order by 21 February 2020. 4. Each of the parties is to prepare a draft order with directions for the determination by one or more referees to be appointed by the Court of the plaintiff’s claims in paragraphs 68 to 99 and 184 to 202 of the FASC and the counterclaims of the first and the second defendant. 5. The parties are to confer about their respective draft orders on or before 7 February 2020. 6. The parties are to submit to the Court an agreed order or, in the absence of agreement, each party’s draft order by 21 February 2020. 7. The application filed 17 May 2019 (court document 99) is otherwise dismissed. 8. Costs in the cause.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – GENERALLY – TRIAL – MODE OF TRIAL – ASSESSOR, SPECIAL REFEREE ETC – SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS – SEPARATE DECISION OR DETERMINATION – where the plaintiff has brought claims in excess of $300 million against the first and second defendants in relation to work each undertook on the design of elements of the Gold Coast Light Rail project, which the plaintiff alleges it relied upon prior to submitting its bid to design and construct the project – where the proceeding is of considerable scope, complexity and importance to the parties – where the plaintiff applies to refer some questions of fact to a referee – where the application is opposed by the defendants – whether a referral would assist in achieving the just and expeditious resolution of the real issues in the proceeding at a minimum expense Uniform Civil Procedure Rules 1999 (Qld), r 5,…