Parks Victoria v GHD Pty Ltd (Ruling)
[2020] VCC 1454
•16 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-00413
| PARKS VICTORIA | Plaintiff |
| v | |
| GHD PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Application determined on the papers | |
DATE OF RULING: | 16 October 2020 | |
CASE MAY BE CITED AS: | Parks Victoria v GHD Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1454 | |
RULING
---
Subject: PRACTICE AND PROCEDURE
Catchwords: Discovery – application by plaintiff for pre-issue discovery
Legislation Cited: County Court Civil Procedure Rules 2018, Rule 32.05
Cases Cited:United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500; Beston Parks Management Pty Ltd v Sexton [2008] VSC 392; Australian Football League v Stadium Operations Ltd [2009] VSC 264
Ruling: Application dismissed.
---
| Counsel | Solicitors | |
| For the Plaintiff | - | Moray & Agnew Lawyers |
| For the Defendant | - | Wotton + Kearney |
HIS HONOUR:
1 This is an application brought by way of Originating Motion by the plaintiff, Parks Victoria, for the defendant, GHD Pty Ltd (“GHD”) (notwithstanding the heading on the documents filed with the Court, GHD is now the only defendant as the claim against the second defendant had earlier been dismissed), to make pre-issue discovery, pursuant to Rule 32.05 of the County Court Civil Procedure Rules 2018.
2 The parties consent to the Court determining this matter “on the papers”. In order to do so, the Court was provided with, and considered the following:
·Affidavit of Nigel Kemp, solicitor for the plaintiff, sworn 3 February 2020.
·Plaintiff’s written submissions, prepared by Mr Czarnota of counsel, dated 11 June 2020.
·Defendant’s written submissions dated 8 July 2020.
·Plaintiff’s reply submission dated 9 July 2020.
Background Facts
3 The Mornington Pier and jetty is located on the Port Phillip Bay at Mornington, between Mount Martha and Mount Eliza. It is described as a popular destination for a range of recreational activities, including sightseeing, fishing and scuba diving. Parks Victoria is the Committee of Management of the Mornington Pier, fisherman’s jetty and adjacent water between the structures.
4 It is not in dispute that by way of background, Parks Victoria, prior to 2012, commenced a project to extend the pier for various reasons, including the provision of safe harbour for commercial and recreational vessels. Various stages of the pier extension were completed between 2012 through until practical completion on 3 July 2015.
5 GHD was apparently engaged by Parks Victoria as the design engineer for stages one and two of the pier extension.
6 The pier was damaged by storm events on various dates, including 6 March 2015, 12 and 13 July 2016 and 9 October 2016.[1] Parks Victoria now seeks pre-issue discovery from GHD in order to determine whether there is a possible civil action against it to recover damages for the physical damage sustained to the pier.
[1]Affidavit of Nigel Kemp, paragraph [4]
Rule 32.05
7 On an application pursuant to Rule 32.05, for discovery from a prospective defendant, an applicant has to establish:
(i)that there is reasonable cause to believe that the applicant has or may have the right to claim relief from an identified person;
(ii)that it has made all reasonable enquiries but does not have sufficient information to decide whether to commence a proceeding to obtain relief;
(iii)that there is reasonable cause to believe that the person has, or is likely to have, or has had or is likely to have had, in his possession, a document relevant to the question whether the applicant has the right to obtain relief; and
(iv)that inspection of the document by the applicant would assist to make a decision whether to proceed.
8 Whether the Court makes an order for discovery from a prospective defendant is a matter for the discretion of the Court.[2]
[2]United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133
9 As Gillard J noted in United Energy at paragraph 31, “the object of the Rule is to … enable a prospective plaintiff to see the relevant documents which the prospective defendant has or has had in his possession in order to make an informed decision as to whether he has a good cause of action”. The prime object of the Rule is to enable access to documents to enable an informed decision to be made.
10 The Rule should be construed benevolently, because it is intended to assist an applicant who does not have sufficient, precise information to commence a proceeding, and to prevent the bringing of speculative suits. It must be given the fullest scope its language will reasonably allow.[3]
[3]Beston Parks Management Pty Ltd v Sexton [2008] VSC 392; Australian Football League v Stadium Operations Ltd [2009] VSC 264
11 The determination of this application involves the consideration of Rule 32.05(b), and whether Parks Victoria already has sufficient information for it to decide to commence a proceeding in the Court to obtain relief against GHD for the damage sustained to the pier.
12 There is an objective aspect to Rule 32.05(b). An applicant – in this case, Parks Victoria – seeking to rely on Rule 32.05(b) is required to show, as an objective fact, that it has not sufficient information for it to decide whether to commence a proceeding to obtain relief.[4] The fact that it says it lacks such information is not determinative of the application.
[4]Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 1500
The parties’ contentions
13 Broadly speaking, the parties’ contentions agree on the relevant principles. GHD, in its written submissions, says that it “does not dispute the relevant principles summarised in the Plaintiff’s written submissions”.[5] What is in dispute is the application of the principles to the facts and circumstances of this case.
[5]Defendant’s written submissions, paragraph [3]
14 Parks Victoria submits that it:
“… has reasonable cause to believe it may have the right to obtain relief from GHD but does not presently have sufficient information to enable it to decide whether to commence a proceeding against GHD”.[6]
[6]Plaintiff’s written submissions, paragraph [9]
15 Next, Parks Victoria submits that it needs further documents to decide “whether it has a good cause of action against GHD”.[7] It says it cannot reach a “firm view” on the information currently within its possession and knowledge so as to form an opinion as to whether it has a proper basis to issue proceedings against GHD.
[7]Plaintiff’s written submissions, paragraph [12]. This submission adopts the language used by the authors in the commentary to LexisNexis Butterworths Civil Procedure: Victoria (online at 18 September 2020) [32.05]
16 In response, GHD submits that Parks Victoria has sufficient information to enable it to decide whether to commence a proceeding against it. In particular, GHD says that Parks Victoria has sufficient material, including the Forensic Engineering Solutions’ report dated 30 July 2019 (the FES report) to already enable it to form a conclusion that it may have a right to relief as against GHD.
17 GHD further submits that to compel pre-issue discovery from it would, in effect, not be for the purpose of assisting Parks Victoria to determine if it has a right to the relief, but rather to reinforce (or comfort) it in a decision to commence proceedings.[8]
[8]Defendant’s written submissions, paragraph [15]
Analysis and conclusion
18 The resolution of this application involves deciding a relatively narrow issue, namely whether, when viewed objectively, Parks Victoria has not sufficient information to justify it “pulling the trigger” and commencing a proceeding in the Court for relief. This involves assessing the information currently within the knowledge of Parks Victoria, as is contained in the affidavit evidence now before the Court, for the purposes of the application of Rule 32.05(b), so as to determine whether the discretion should be exercised in the manner sought by Parks Victoria.
19 There is no dispute that GHD was the design engineer for the relevant works to be performed on the pier. Parks Victoria already has considerable information about the extension works on the pier and the storm damage to it, including the FES report. The FES report expresses expert opinion directed towards a number of alleged failures by GHD in the role of design engineer. Examples of such can be summarised by reference to the opinion expressed at paragraph 6.6 of the FES report that “[t]he review of the 2018 reconstruction wave screen drawings is strongly suggestive that the original design was significantly inadequate”.
20 True it is that later in the FES report is the recommendation, at paragraph 6.7, that further “computations, drawings and files/correspondence” be obtained from various entities, including GHD. It is not suggested by Parks Victoria that other lines of enquiry have not been pursued. I note that at an earlier stage, pre-issue discovery was sought from Water Technology Pty Ltd. There is no explanation given as to what happened in response to the application against that entity, other than such application was dismissed by consent. Likewise there is no explanation as to what has occurred since Parks Victoria issued the Originating Motion, or Mr Kemp swore his affidavit on 3 February 2020.
21 In any event, at paragraph 6.8 of the FES report, the authors express the opinion that there were three probable contributing factors to the damage caused to the pier. These factors are said to be unable to be “positively confirmed” until the further information in paragraph 6.7 of the report is obtained, which of course includes obtaining information from entities other than GHD. The report sets out in some detail the summary of those three probable contributing factors, namely: being incorrect design of significant wave height; incorrect panel geometry used for WRL model; and inadequate fixing design of lower connection of panels to steel waler. It is hard to see how those three ‘probable contributing factors’ could not in some way relate to actions taken by the design engineer – in this case GHD – for the extension works undertaken to the pier.
22 In my opinion, based on the material provided, in particular the FES report, and keeping in mind I am only asked to determine a pre-issue discovery point and not the potential proceeding, there is already considerable information to conclude that the conduct of GHD, as design engineer, was such that Parks Victoria would be entitled to commence a proceeding to seek relief against it. Indeed, viewed objectively, it already has sufficient information to decide that it has a good cause of action.
23 Notwithstanding the benevolent aspect of Rule 32.05, on this occasion I prefer the submissions of GHD.
24 On an application such as this, the test is not whether the applicant needs documents to say with certainty whether it has “a good cause of action” in the sense of determining the strength of what already appears to be a good cause of action, as suggested by Parks Victoria. The test is whether, objectively, an applicant has sufficient information in order to establish whether it may have a right of relief; a good cause of action. It is trite to say there is a distinction between already having sufficient objective information to give knowledge of a right to relief as opposed to knowledge of a strong claim for relief.
25 Therefore, having considered the evidence before the Court and the submissions of the parties, I conclude that Parks Victoria, based on the information it already has, does, or should, know it has a potential right of recovery from GHD. The information it already has, when viewed objectively, is such that it has sufficient information to know it has a good cause of action against GHD. It does not need the further information sought by it to have “sufficient information”.
26 For the reasons set out, I conclude that it is not appropriate to exercise the discretion provided by Rule 32.05 to invoke pre-issue discovery as each element of the Rule has not been made out. Specifically, I conclude that the requirement of Rule 32.05(b) has not been made out based on the evidence and submissions before the Court on this application.
27 Accordingly, the application is dismissed and subject to an application by either party, Parks Victoria is to pay GHD’s costs of this application.
28 The formal orders of the Court are as follows:
(1) The application is dismissed.
(2) The plaintiff is to pay the defendant’s (GHD) costs in the absence of any party making an application to the Court by 4.00pm on 23 October 2020.
(3) Liberty to apply.
- - -
0
3
0