Pentridge Village Pty Ltd (in liq) v Construction, Forestry, Maritime, Mining & Energy Union

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S CI 2016 02556

PENTRIDGE VILLAGE PTY LTD (In Liquidation) (ACN 087 151 068) & ORS (according to the Schedule attached)	Plaintiffs
v
CONSTRUCTION, FORESTRY, MARITIME, MINING & ENERGY UNION & ORS (according to the Schedule attached)	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25 March 2022
DATE OF JUDGMENT:	8 June 2022
CASE MAY BE CITED AS:	Pentridge Village Pty Ltd (in liq) & Ors v Construction, Forestry, Maritime, Mining & Energy Union & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 303

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APPEAL – Self-executing orders requiring the plaintiffs to comply in full with orders for the filing of expert evidence and further and better particulars of statement of claim – Plaintiffs filed expert evidence and further and better particulars within specified time – Whether compliance with orders illusory – Whether deficiencies in expert evidence and further and better particulars resulted in non-compliance with self-executing orders – Supreme Court (General Civil Procedure) Rules 2015 r 77.06.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	No Appearance
For the Second & Third Plaintiffs	Mr J Bourke QC and Mr B Mueller	Piper Alderman
For the Defendants	Ms R Doyle SC and Mr J Gurr	Gordon Legal

HIS HONOUR:

INTRODUCTION

The principal question in the present proceeding is whether the plaintiffs breached self-executing orders (‘SEO’s’) made on 18 February 2021 (‘February 2021 orders’) requiring them to ‘comply in full’ with orders for the filing of an expert report of Mr David Watson (‘Watson report’) by 31 May 2021 and further and better particulars of the third further amended statement of claim (‘FASOC’) by 21 June 2021 (‘June 2021 particulars’). The Watson report and the June 2021 particulars were filed and served by the stipulated date without any complaint by the defendants that there had been non-compliance with the orders.

On 28 July 2021 the plaintiffs filed a summons seeking leave to file and serve a fourth FASOC. The affidavit in support of the summons annexed proposed orders which included orders that the plaintiffs have leave to file updated further and better particulars of loss and damage and a supplementary report of Mr Watson by 11 October 2021. The summons was listed for hearing on 7 October 2021. On 5 October 2021 the plaintiffs’ solicitor filed an affidavit in support of the summons. The affidavit together with the submissions of the plaintiffs’ counsel on 7 October 2021 made clear that the plaintiffs believed that the Watson report and the June 2021 particulars undervalued the plaintiffs’ claim for damages.

In a ruling delivered on 17 December 2021,[1] an Associate Judge concluded that the plaintiffs had failed to comply with the February 2021 orders. Her Honour concluded that in light of the admitted deficiencies in the Watson report and the June 2021 particulars, the plaintiffs’ compliance with the orders had been ‘illusory’[2] and that the proceeding should be dismissed. The Associate Judge rejected an application to vary the February 2021 orders to permit the plaintiffs to file and serve a supplementary report of Mr Watson. The Associate Judge refused the plaintiffs’ application to file and serve a fourth FASOC. On 7 February 2022 the Associate Judge made orders dismissing the proceeding.
[1]Pentridge Village Pty Ltd (in liq) v Construction, Forestry, Maritime, Mining and Energy Union & Ors (Self-executing order ruling) [2021] VSC 848 (‘Self-executing order ruling’).
[2]Ibid [47].

Pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 the plaintiffs appeal against the dismissal of the proceeding and the refusal to grant leave to file and serve a fourth FASOC. For the reasons which follow I uphold the appeal against the dismissal of the proceeding. The Associate Judge erred in concluding that by reason of the admitted deficiencies in the Watson report and the June 2021 particulars the plaintiffs’ compliance with the 18 February 2021 orders was illusory. Objectively construed the 18 February 2021 orders required both temporal and substantive compliance. The Watson report and the June 2021 particulars satisfied both requirements when they were filed. The plaintiffs’ subsequent application for leave to file a fourth FASOC and the submissions advanced in support of that application did not render compliance with the February 2021 orders illusory. However, the February 2021 orders preclude the plaintiffs from filing any further expert evidence on loss and damage or any further particulars of loss, save where such loss is supported by the Watson report.

BACKGROUND

The first plaintiff (‘Pentridge Village’) is a company in liquidation. The second plaintiff (‘West Homes’) was engaged by Pentridge Village from October 1999 to October 2012 to undertake construction work for a residential development on what was previously the site of Pentridge Prison (‘Pentridge Site’). The third plaintiff (‘Mr Chiavaroli’) has been a director of Pentridge Village since 30 July 2012 and a director of West Homes intermittently between April 1994 and April 2011, and continually from April 2016. Mr Chiavaroli is the assignee of the rights, title and interest of Pentridge Village in the present proceeding. The first defendant (‘CFMMEU’) is an organisation of employees registered pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). The second, third, seventh and eighth defendants are employees and/or office holders of CFMMEU. The fourth and sixth defendants were representatives of the CFMMEU on the Pentridge Site. The proceeding has been discontinued against the fifth and ninth defendants.

The plaintiffs allege that the defendants engaged in tortious conduct which forced Pentridge Village and West Homes to enter into an Enterprise Bargaining Agreement (‘EBA’) with the CFMMEU. The plaintiffs allege that following the death of a construction worker on the Pentridge Site on 15 October 2009, the CFMMEU made unlawful demands that the plaintiffs:

(a)utilise CFMMEU people and CFMMEU sub-contractors by first entering into an EBA with the CFMMEU; and

(b) engage CFMMEU representatives at the Pentridge Site.[3]

The plaintiffs allege that as a result of the construction work being regulated by the EBA the cost and duration of construction were significantly increased.

[3]AB1906, ‘Third FASOC filed 27 April 2020’, [12(a)].

The proceeding was commenced by a generally endorsed writ filed on 30 June 2016. A statement of claim was filed on 22 August 2017. An amended statement of claim was filed in December 2017. The plaintiffs’ solicitors at the time of the filing of the writ and statement of claim were Seyfarth Shaw. On 5 May 2018 Adley Burstyner commenced acting for the plaintiffs. A FASOC was filed on 31 May 2018. A second FASOC was filed on 15 February 2019.

On 19 March 2019 Howard Bear Legal Consulting Services (‘Howard Bear’) commenced acting for West Homes and Mr Chiavaroli. A third FASOC was filed on 14 July 2020. On 3 November 2020 Howard Bear also commenced acting for Pentridge Village. On 14 July 2021 Piper Alderman commenced acting for West Homes and Mr Chiavaroli.

A detailed chronology of the proceeding is annexed to this judgment marked ‘A’. The matters recorded in the chronology are not contentious.

The December 2017 amended statement of claim claims damages exceeding $68 million together with unquantified damages for loss of opportunity. On 13 April 2018 orders were made by consent for the plaintiffs to file a FASOC. The FASOC was filed on 31 May 2018. On 14 June 2018 the defendants requested further and better particulars of the FASOC. The further and better particulars were filed on 17 September 2018. On 2 November 2018 the defendants filed a summons seeking to strike out the FASOC. On 5 February 2019 the plaintiffs sought leave to file a second FASOC. Leave was granted on 12 February 2019. The plaintiffs served further and better particulars of the second FASOC on 31 July 2019 (‘July 2019 particulars’). On 9 September 2019 the defendants filed a summons seeking to strike out parts of the second FASOC and the July 2019 particulars. On 18 February 2020 the Associate Judge made orders striking out parts of the second FASOC and the July 2019 particulars.

On 27 April 2020 the plaintiffs filed a summons seeking leave to file a third FASOC. On 30 April 2020 the defendant served a request for further and better particulars of the proposed third FASOC. On 21 May 2020 the Associate Judge ordered the plaintiffs to provide particulars of the proposed third FASOC by 24 June 2020. On 26 June 2020 the further and better particulars were filed (‘June 2020 particulars’). On 3 July 2020 the defendants made a request for additional particulars (‘July 2020 particulars request’).

On 13 July 2020 the Associate Judge made orders by consent granting the plaintiffs leave to file and serve the third FASOC and the June 2020 particulars. The grant of leave was conditional upon the plaintiffs answering the July 2020 particulars request by 14 August 2020. On 14 July 2020 the plaintiffs filed and served the third FASOC and the June 2020 particulars.

On 18 August 2020 the plaintiffs provided a partial response to the July 2020 particulars request (‘August 2020 particulars’). On 23 September 2020 Gordon Legal, the defendants’ solicitors, wrote to Howard Bear taking issue with the adequacy of the August 2020 particulars.

On 1 December 2020 Howard Bear wrote to Gordon Legal advising that the plaintiffs had instructed Mr David Watson to prepare an expert report in respect of the plaintiffs’ loss and damage. The plaintiffs proposed orders striking out the June 2020 particulars and the August 2020 particulars and permitting the plaintiffs to file and serve particulars in response to the August 2020 request following receipt of the Watson report.

It is clear from Mr Bear’s letter of 1 December 2020 that the plaintiffs intended that Mr Watson’s report would provide the basis of the plaintiffs’ response to the defendants’ 30 April 2020 request for further and better particulars. Mr Bear’s letter of 1 December 2020 stated in part:

Expert Report of Mr Watson and further particulars
I am [sic] the process of instructing Mr Watson of Hinds Blunden to prepare an expert report in respect of loss and damage flowing from your client’s tortious conduct, including without limitation, the claim for additional costs and delay/delay costs.
A copy of the preliminary letters of instruction to Mr Watson dated 21 August 2020 and 12 October 2020 are enclosed for your information.
Upon receipt of Mr Watson’s independent expert report, the plaintiffs will properly particularise its claims for additional ‘direct costs’ and its claim for delay/delay costs and address the deficiencies identified in your correspondence including ‘cause and effect’.
I note that the process of briefing Mr Watson with relevant materials has been significantly delayed due to the inability to gain access to all of the project documents during the COVID pandemic and is ongoing.
I estimate that the further tranche of documents contemplated in the preliminary letter of instruction dated 12 October 2020 will be briefed to Mr Watson by late December 2020.
Thereafter, I estimate that the additional documents pertaining to the other Lots will be provided to Mr Watson by 31 December 2020.
Pending receipt of Mr Watson’s report, any attempt by my clients to further address your clients’ perceived short comings [sic] of the further and better particulars dated 17 August 2020 is likely to unnecessarily cause costs to be incurred.[4]

[4]AB1572–3, ‘Letter from Mr Howard Bear to Mr James Naughton dated 1 December 2020’.

On 4 December 2020 Mr Bear forwarded to the defendants a minute of consent order which included the following in ‘Other Matters’:

By letter dated 1 December 2020 (1 December letter), the Second and Third Plaintiffs advised the CFMMEU Defendants that they had instructed Mr David Watson of Hinds Blunden to prepare an expert report in respect of loss and damage (the proposed Watson Report) and provided the CFMMEU Defendants with copies of two letters of instructions to Mr Watson dated 21 August 2020 and 12 October 2020 respectively (the Watson Instructions).
By the 1 December letter the Second and Third Plaintiffs proposed orders to the effect that: the June Particulars and the August Particulars be struck out; the Second and Third Plaintiffs deliver particulars in response to the April 2020 Request (proposed Substitute Particulars) following receipt of the proposed Watson Report; and the defendants thereafter deliver defences to the 3FASOC.[5]

[5]AB2188, ‘Plaintiffs’ Minute of Proposed Orders dated 4 December 2020’.

On 9 December 2020 the Associate Judge made orders by consent. The ‘Other Matters’ section of the order included the matters set out above as proposed by Mr Bear. In addition, the following orders were made:

2.The further and better particulars of the 3FASOC dated 26 June 2020 and 18 August 2020 are both struck out.
3.By 4.00pm on 3 May 2021 the Plaintiffs file and serve a copy of any expert report by Mr David Watson of Hinds Blunden upon which they intend to rely.
4.By 4.00pm on 31 May 2021 the Plaintiffs file and serve further and better particulars of the 3FASOC in response to the CFMMEU Defendants’ request dated 30 April 2020.
5.The plaintiffs pay the CFMMEU Defendants’ costs of and incidental to the strike out of the plaintiffs’ particulars dated 16 June 2020 and 18 August 2020, on an indemnity basis, with such costs to be taxed in default of agreement.

On 18 February 2021 the parties appeared at a directions hearing. The plaintiffs sought an extension of the dates for the filing of the Watson report and the substitute further and better particulars. The plaintiffs sought an extension until 16 July 2021 for the filing of the Watson report and 13 August 2021 for the filing of the further and better particulars. The Court made the following orders:

1.The time in paragraph 3 of the Court’s orders made 9 December 2020 (‘9 December 2020 Orders’) for the plaintiffs to file and serve a copy of any expert report of Mr David Watson upon which they intend to rely is extended to 4.00 pm on 31 May 2021.
2.The time in paragraph 4 of the 9 December 2020 Orders for the plaintiffs to file and serve further and better particulars of the third further amended statement of claim (3FASOC) in response to the CFMMEU Defendants’ request dated 30 April 2020 is extended to 4.00 pm on 21 June 2021.
3.If the plaintiffs fail to comply in full with paragraph 1 of these Orders:
(a) the 3FASOC will be struck out in its entirety;
(b) subject to paragraph 3(c) of these Orders, the proceeding will stand dismissed; and
(c) the defendants will have leave by 4.00 pm on 14 June 2021 to make any application for such relief as they may be advised, including any application for costs and (in relation to the CFMMEU Defendants) any application for recourse to the security provided in relation to costs pursuant to paragraph 15 of the Orders made 12 February 2019 (as amended on 18 February 2019).

4. If the plaintiffs fail to comply in full with paragraph 2 of these Orders:
(a) the 3FASOC will be struck out in its entirety;
(b) subject to paragraph 4(c) of these Orders, the proceeding will stand dismissed; and
(c) the defendants will have leave by 4.00 pm on 5 July 2021 to make any application for such relief as they may be advised, including any application for costs and (in relation to the CFMMEU Defendants) any application for recourse to the security provided in relation to costs pursuant to paragraph 15 of the Orders made 12 February 2019 (as amended on 18 February 2019).

5. The matter is listed for further directions on 22 July 2021.
6. The plaintiffs pay the CFMMEU Defendants’ and the ninth defendant’s costs of and incidental to this hearing.

7. Liberty to apply.

Construction of the February 2021 orders

The dispute between the parties in the present appeal turns on the proper construction of the February 2021 orders. The construction of the orders requires consideration of both the terms of the orders and the ruling made by the Associate Judge at the time of pronouncing the orders.[6]
[6]Slea Pty Ltd & Ors v Connective Services Pty Ltd & Ors (2018) 359 ALR 159, [30]–[31].

The Associate Judge’s ruling addressed both the timetabling orders and the SEO’s constituted by paragraphs 3 and 4 of the orders. The Associate Judge noted that in the ‘Other Matters’ section of the Court’s orders of 9 December 2020 the Court had declined to vacate the directions hearing listed for 18 February 2021 and that, given the age of the proceeding, wished to hear from the parties on 18 February 2021 as to why the proceeding should not be allocated a trial date. The Associate Judge stated that the plaintiffs had been dilatory in prosecuting the proceeding and that the Court had previously made findings of unreasonable delay by the plaintiffs. The Associate Judge noted that the proceeding was not ready to be set down for trial because the plaintiffs had not filed a response to the defendants’ request for further and better particulars dated 30 April 2020. The Associate Judge referred to the affidavit of the plaintiffs’ solicitor in support of the application to extend the time for filing the Watson report to 16 July 2021. The Associate Judge observed that the affidavit did not address the question of resourcing of the litigation: ‘I am not satisfied the plaintiffs are adequately resourcing this matter’.[7] The Associate Judge stated that the plaintiffs’ delay was contrary to their obligations under the Civil Procedure Act 2010 and rejected a submission that the defendants were not prejudiced because the matter had not yet been listed for trial. The Associate Judge noted that the allegations the subject of the statement of claim were alleged to have arisen more than a decade earlier.
[7]AB1013, ‘Orders of the Associate Judge dated 18 February 2021’, ‘Other Matters’ at H.

The Associate Judge dealt with the SEO’s as follows:

As to the self-executing orders, I wish to now refer to Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110. In that case the Court of Appeal referred to the appellant, who was a serial defaulter. They indicated he had been persistently dilatory in taking steps in his appeal.
I want to pause here and say that is the situation here with the plaintiffs. The plaintiffs have been dilatory in prosecuting this proceeding – we are still in pleadings.
In paragraph 32 of that judgment, the Court of Appeal said, 'A self-executing order is, quite intentionally, penal in character. The order has several purposes – to signify the court's disapproval of prior non-compliance; to emphasise the importance of obedience to court orders; and to secure the performance of the particular procedural step(s) the subject of the order'.
The Court went on to say that in that case, ’The imposition of a self-executing order… [had] secured all of these purposes. It sent a clear message to [the appellant], and others who will doubtless follow him, that disobedience to procedural orders will not be tolerated.’
This principle is applicable here. The situation is that the plaintiffs have been constantly reminded of the importance of timeliness and yet they propose to further extend matters out and the proceeding is not ready for trial.
I will make the self-executing orders that have been proposed by the CFMMEU Defendants and I will make the timetabling orders that are proposed by the CFMMEU Defendants.[8]

[8]AB2462–3, ‘Ruling of the Associate Judge dated 18 February 2021’.

The plaintiffs filed the Watson report on 31 May 2021 and the substitute further and better particulars on 21 June 2021. On 14 July 2021 Piper Alderman commenced acting for the plaintiffs. On 28 July 2021 the plaintiffs filed a summons seeking leave to file and serve a fourth FASOC. The affidavit in support of the summons exhibited proposed orders.[9] The proposed orders included the following:

[2]By 4:00pm on 11 October 2021, the plaintiffs have leave to file and serve updated further and better particulars as to loss and damage…
[5]By 4:00pm on 11 October 2021 the plaintiffs have leave to file and serve a supplementary expert report of David Watson.

[9]AB194–5, ‘Exhibit to Affidavit of Mr Ian Nathaniel dated 28 July 2021’.

The plaintiffs’ summons was listed for hearing on 7 October 2021. On 5 October 2021 the plaintiffs filed and served an affidavit of Mr Ian Nathaniel, a partner of Piper Alderman and the solicitor with the conduct of the proceeding on behalf of the plaintiffs.

Mr Nathaniel deposed that since Piper Alderman had been retained the firm had been conducting a review of the June 2021 particulars and the Watson report.[10] This review had been conducted with senior and junior counsel who had been retained on 6 July 2021.[11] Under the heading ‘Watson Report Issues’ Mr Nathaniel deposed that during the review process a number of issues in relation to the Watson report had emerged.[12] Thereafter the affidavit set out the basis for Mr Nathaniel’s concern that ‘the Watson report has not dealt with Delay Damages as adequately as should be the case and these concerns extend to the Current Particulars to the extent they adopt the Watson Report on Delay Damages.’[13] In relation to direct cost damages Mr Nathaniel expressed concern that

Mr Watson was not provided with sufficient information (or inadequate explanation of that information) [in respect of several relevant sub-contractors]. This appears to have caused Mr Watson to conclude that there was no material increase in the labour costs for which those sub-contractors charged for the relevant work. Based on my instructions from the third plaintiff, there was an increase in labour costs for these sub-contractors.[14]

[10]AB377, ‘Affidavit of Mr Ian Nathaniel dated 5 October 2021’, [7].

[11]Ibid [6].

[12]Ibid [9].

[13]AB378, ‘Affidavit of Mr Ian Nathaniel dated 5 October 2021’, [14].

[14]AB379, ‘Affidavit of Mr Ian Nathaniel dated 5 October 2021’, [17].

Under the heading ‘Current Particulars’ Mr Nathaniel deposed:

By reason of the above matters, the Current Particulars do not, in my opinion, provide proper or comprehensive particulars of loss and damage in relation to the 3FASOC.
Further, some of the particulars provided in the Current Particulars concern matters going both to liability and causation issues and, on the advice of counsel, may need further clarification to ensure that such particulars relate to the 3FASOC and the proposed 4FASOC.[15]

[15]AB380, ‘Affidavit of Mr Ian Nathaniel dated 5 October 2021’, [22]–[23].

Under the heading ‘Plaintiffs’ Proposed Course Going Forward’ Mr Nathaniel deposed:

Subject to the Court being disposed to make orders permitting it, the Plaintiffs propose to file and serve:
24.1     an affidavit of Mr Murray Nugent and possibly a supplementary affidavit of Mr Watson;
24.2     a discrete set of particulars of loss and damage; and
24.3     amended Current Particulars which will be formulated to be responsive to the Defendants’ FB Request as adapted to the 4FASOC.

The Plaintiffs seek to file and serve an affidavit of expert evidence of Mr Murray Nugent. I am advised by Mr Nugent that he has extensive knowledge and experience in the building industry, including in respect of costings for building projects, and that he has spent a vast amount of time analysing the documents relevant to the loss and damage claim in this proceeding…
The Plaintiffs also have under consideration whether to seek a supplementary report from Mr Watson that would deal with, amongst other things, the various matters I have raised above about the current Watson Report.[16]

[16]AB380–1, ‘Affidavit of Mr Ian Nathaniel dated 5 October 2021’, [24]–[25], [28].

On 6 October 2021 counsel for the defendants emailed opposing counsel advising:

In light of the matters deposed to in the Nathaniel affidavit of 5 October 2021, including the proposed orders at IAN-9 the CFMMEU defendants will tomorrow submit that the Court ought treat its self-executing orders made on 18 February 2021 as not having been complied with, and will submit that this requires the dismissal of the proceeding entirely.[17]

[17]AB2160, ‘Email from Ms Rachel Doyle SC to Mr Justin Bourke QC dated 6 October 2021’.

During the hearing on 7 October 2021 counsel for the plaintiffs provided the Associate Judge with a document entitled: ‘Watson report and particulars dated 21 June 2021 in respect of paragraphs 19 and 22 of the fourth FASOC contractors’ (‘the Watson Report Critique’). Paragraph 19 of the proposed fourth FASOC pleads a claim for damages. It identifies various contractors who worked on Pentridge Site post-July 2010. Save for the addition of two sub-contractors, each of the contractors listed in paragraph 19 are also listed in paragraph 19 of the third FASOC. The plaintiffs allege that the contractors:

(a)increased the price charged for their work to reflect higher costs to them as a consequence of working in accordance with the EBA; and
(b)took longer to complete their work by reason of having to work in accordance with the EBA.

The Watson Report Critique disclosed that, in respect of the sub-contractors listed in paragraph 19, the plaintiffs:

(a)disagree with the Watson report insofar as it concludes that there was no loss incurred in respect of the work undertaken by Onal Painting, Adwill Bricklayers Pty Ltd and NWE (Vic) Pty Ltd;
(b)wished to have a loss assessment undertaken in respect of contractors who were not considered in the Watson Report: Shotton Group Pty Ltd; Malcolm Tilley; and William Pepe;
(c)wished to amend an incorrect calculation of damage assessed by Mr Watson in respect of Diangel Constructions Pty Ltd in the sum of $350,759.71.

Paragraph 22 of both the third FASOC and the proposed fourth FASOC lists sub-contractors who replaced sub-contractors who had worked on the site prior to July 2010. The plaintiffs allege that the replacement sub-contractors completed work at a higher price and over a longer period of time as a consequence of working in accordance with the EBA. The Watson Report Critique discloses that the plaintiffs disagree with Mr Watson’s assessment of damage sustained as a consequence of new sub-contractors being engaged to replace:

(i)        Super Kitchens [22(c)];
(ii)       Stair Form [22(d)];
(iii)      Valley Constructions [22(e)];
(iv)      Bushy Park [22(f)];
(v)       Design Plaster Group [22(g)];
(vi)      Hansen Construction Materials and CSR Semex [22(h)].

Mr Nathaniel’s affidavit of 5 October 2021, together with the Watson Report Critique and the submissions advanced on behalf of the plaintiffs during the hearing on 7 October 2021, left no room for any doubt that the plaintiffs disagreed with the Watson report and wished to file further evidence of other experts and potentially a supplementary report of Mr Watson to address the perceived shortcomings of the Watson Report.

Following the hearing on 7 October 2021 the Associate Judge published a ruling on 17 December 2021 dismissing the proceeding on the grounds of non-compliance with the February 2021 orders.[18] On 7 February 2022 the Associate Judge made orders giving effect to the self-executing order ruling by dismissing the proceeding.
[18]Self-executing order ruling (n 1).

In her ruling the Associate Judge concluded that the SEO’s were directed to both temporal and substantive issues.[19] The Associate Judge noted that the SEO’s imposed an obligation to comply ‘in full’ and that these words should be given their plain meaning. In this regard the Associate Judge set out the Macquarie Dictionary definition of ‘full’ as follows:

1. filled: containing all that can be held; filled to utmost capacity: a full cup; a full theatre.

2. complete: entire; maximum; a full supply.[20]

[19]Ibid [42].

[20]Ibid [43].

The Associate Judge concluded that by reason of the admitted deficiencies in the June 2021 particulars and the Watson Report, there had not been full compliance with paragraphs one and two of the February 2021 orders:

It is a phrase used both in respect of the Watson report and the June 2021 particulars. It is directed to substantive compliance. The self-executing orders must be construed in the context of the Other Matters recorded, which include reference to the plaintiffs’ conduct of the proceeding. Considering the text and context of the self-executing orders leads to the conclusion that they were directed to both substantive and temporal compliance. Both the Watson report and the June 2021 particulars were filed on the last possible day to comply with the deadline in the orders. However, as is common ground now, neither are complete.
The June 2021 particulars are incomplete and deficient. Amongst other things, they state that the plaintiffs are unable to provide particulars in respect of various matters: see paragraphs 5C, 8(g)(2), 9(g)(2), 9(l), 10(f2), 11(f2), 13, and 15. Moreover, to the extent that they rely upon the Watson report, this raises issues as the plaintiffs say there are deficiencies in it. The plaintiffs seek to file revised particulars.
As to the Watson report, it is common ground that the plaintiffs themselves consider it insufficient: see Annexure A table.
The plaintiffs have not provided any evidence to directly explain how it came to pass that they did not properly brief Mr Watson or provide him with sufficient information. I am not prepared to infer there was a good faith attempt by the plaintiffs to comply with the orders. I was urged to accept that the briefing of their fourth set of solicitors demonstrates a preparedness to properly resource the matter. Given the history of this litigation, and in the absence of any explanation as to why the plaintiffs would suddenly decide to properly resource this litigation after so many years, I decline to draw any such inference. To be clear, I am not suggesting there was a lack of good faith by their solicitors. Solicitors depend upon the instructions given to them. As matters stand, the compliance by the filing of the Watson report and the June 2021 particulars was illusory, given the deficiencies in both documents. The filing did not achieve what was intended – for the proceeding to progress towards trial.[21]

[21]Ibid [44]–[47].

The plaintiffs submit that the Associate Judge erred in construing the SEO’s as requiring both temporal and substantive compliance. They submit that the SEO’s are time compliance orders only. I reject this submission.

The SEO’s impose an obligation on the plaintiffs to comply in full with paragraphs 1 and 2 of the orders. Paragraph 1 extended the time for the filing of the Watson Report under paragraph 3 of the order made on 9 December 2020 (3 May 2021) to 31 May 2021. Paragraph 2 extended the time for the filing of the further and better particulars under paragraph 4 of the 9 December 2020 orders (31 May 2021) to 21 June 2021. Mr Bourke QC, who appeared with Mr Mueller for the plaintiffs, submitted that when the 18 February 2021 and 9 December 2020 orders are read together, the only obligation subject to the SEO’s was the requirement to file the Watson Report and the further and better particulars by the specified date. He submitted that the words ‘in full’ are words of emphasis which reinforce the necessity for the prescribed timetable to be met.[22] I reject this submission.
[22]Transcript of Proceedings, T 11 L 13–15 (24 March 2022).

The February 2021 orders must be construed on their terms, read as a whole and given effect accordingly.[23] If the SEO’s are no more than time compliance orders the words ‘in full’ add nothing to the obligation created by the orders. Without the words ‘in full’, the SEO’s would be enlivened if the Watson Report and the further particulars were not filed by the prescribed date. Properly construed, the SEO’s impose obligations of both temporal and substantive compliance. The obligation imposed upon the plaintiffs by the SEO’s was to file, by the prescribed time, the report of Mr Watson and the further and better particulars ‘upon which they intend to rely’. The obligation to comply ‘in full’ meant that the prescribed dates of 31 May 2021 and 21 June 2021 were the cut off dates for the filing of the Watson report and the further and better particulars upon which the plaintiffs could rely at trial. The effect of the orders was that, subject to complying with the prescribed date, the plaintiffs would not be permitted to file any further expert evidence in respect of loss and damage and further and better particulars beyond those filed by 31 May 2021 and 21 June 2021. So construed, the SEO’s imposed obligations of both temporal and substantive compliance.
[23]Sandrin v W & M Riggs Mechanical Repairs [2006] NSWCA 194, [44]–[45]; Anderson v Hasset [2007] NSWSC 1310, [11]–[15]; Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65, [47]; Mango Boulevard Pty Ltd v Spencer [2010] QCA 207, [2]–[7], [94]–[107]; Shout Rocks Cafes Pty Ltd v City of Port Philip [2018] VSC 120, [17].

Against the backdrop of their inability, over an extended period, to particularise their claim, the February 2021 orders afforded the plaintiffs one final opportunity to particularise the claim for loss and damage upon which they would rely at trial. The objective purpose of the orders was to stipulate a final date by which the plaintiffs were required to set out their case on loss and damage. The obligation to ‘comply in full’ was an obligation to file both the Watson report and the further and better particulars in a form which was both comprehensive and final.

The requirement for full compliance was satisfied by the filing of a comprehensive report and particulars even if there were some deficiencies therein. If the obligation to comply in full required the plaintiffs to file a report and particulars which were complete, in the sense of having no omission or deficiency, this could result in draconian outcomes. For example, if the plaintiffs failed to respond to one of a very large number of requests for particulars, the proceeding would automatically be dismissed. Notwithstanding the penal nature of a self-executing order I do not accept that, objectively construed, this is the effect of the February 2021 orders.

The Watson Report filed 31 May 2021 and the June 2021 particulars are comprehensive documents. It is readily apparent on the face of the documents that their preparation entailed considerable time and expense. When the documents were served on the defendants no complaint was made that there had been any non-compliance with the February 2021 orders. Ms Doyle SC, who appeared with Mr Gurr for the defendants, accepted that when the Watson Report and June 2021 particulars were filed the defendants thought that the plaintiffs had ‘put in a document that looks and sounds right’.[24] The absence of any complaint stands in stark contrast with the numerous (and justified) complaints previously made by the defendants as to the adequacy of the plaintiffs’ attempts to particularise their claims. Shortly stated, as at 21 June 2021 the plaintiffs had pleaded and particularised a claim for damages in the sum of $4.6 million. The claim was supported by a comprehensive expert report and particulars about which no complaint had been made. As at 21 June 2021 there had been both temporal and substantive compliance with the February 2021 orders.
[24]Transcript of Proceedings, T 174 L 10–11 (25 March 2022).

The Associate Judge concluded that the compliance with the SEO’s was illusory because of the admitted deficiencies in both documents as set out in the Nathaniel affidavit of 5 October 2021 and the Watson Report Critique. The Associate Judge was also not prepared to infer that there had been a good faith attempt by the plaintiffs to comply with the February 2021 orders. I disagree with both these findings. The comprehensive nature of both the Watson report and the June 2021 particulars supports an inference that at the time of filing the report and the particulars the plaintiffs intended to rely upon them at trial.

It is clear that the solicitors and counsel subsequently engaged by the plaintiffs in July 2021 formed a view that the Watson Report and the particulars based thereon undervalued the plaintiffs’ claim. However, this opinion was not the result of any discussion with Mr Watson.[25] His report is unqualified. He does not state that he was unable to give proper consideration to the matters he was asked to address. The Nathaniel affidavit of 5 October 2021 and the Watson Report Critique were relied upon by the plaintiffs in support of their application for leave to file a fourth FASOC and further expert evidence. Notwithstanding the collective view of Piper Alderman and the plaintiffs’ counsel that there are deficiencies in the Watson Report and the June 2021 particulars, her Honour erred in concluding that ‘the filing did not achieve what was intended – for the proceeding to progress towards trial’.[26] As a result of the filing of the Watson Report and the June 2021 particulars, as at 21 June 2021 the plaintiffs’ claim for $4.6 million was able to proceed to trial. This conclusion is not undermined by the fact that the solicitors and counsel engaged post-21 June 2021 considered the Watson Report and the June 2021 particulars to be deficient.
[25]Transcript of Proceedings, T 184 L 18–19 (25 March 2022).
[26]Self-executing order ruling (n 1) [47].

A self-executing order should state with precision the act to be done to comply with the Order.[27] If the SEO’s were to be enlivened by the plaintiffs contending, in support of an application for leave to file a fourth FASOC and further expert evidence, that there were deficiencies in the Watson report and the June 2021 particulars, this should have been clearly articulated in the order.
[27]Ridge Lane Pty Ltd v Gadzhis [2007] VSC 212, [39].

Her Honour concluded that the June 2021 particulars were incomplete and deficient.[28] Her Honour noted that the plaintiffs had been ‘unable to provide particulars in respect of various matters: see paragraph 5C, 8(g)(2), 9(g)(2), 9(l), 10(f2), 11(f2), (13) and (15).’[29] If the SEO in respect of the further and better particulars is to be construed such that any deficiency in the particulars would result in the dismissal of the proceeding, this should have been clearly spelt out in the order. Notwithstanding the deficiencies identified by her Honour, the June 2021 particulars are comprehensive and particularise a claim for damages in the sum of $4.6 million. To the extent that the claims in the third FASOC have not been particularised, the effect of the February 2021 orders is that the plaintiffs are precluded from seeking damages in respect of claims which have not been properly particularised.
[28]Self-executing order ruling (n 1) [45].
[29]Ibid.

The plaintiffs’ application to vary the 18 February 2021 orders

The plaintiffs’ appeal is brought pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015. The appeal is in the nature of a rehearing and requires the plaintiffs to establish error on the part of the Associate Judge before appellate power may be exercised. Once error is established in relation to the determination the subject of the appeal, the Judge hearing the appeal has all the powers of the Court constituted by the Associate Judge, including to give any judgment and make any order which ought to have been given or made (r 77.06.9(2)(b)) and to make any further or other order as the case may require (r 77.06.9(2)(d)).

The plaintiffs have established that the Associate Judge erred in concluding that the proceeding should be dismissed for non-compliance with the SEO’s. Consequently, the order made on 7 February 2022 dismissing the proceeding must be set aside. As a result of this finding it is unnecessary to consider the plaintiffs’ alternative grounds of appeal challenging the Associate Judge’s failure to set aside or vary the SEO’s. These grounds of appeal are premised on the Associate Judge not having erred in concluding that the plaintiffs failed to comply with the SEO’s.[30] For the same reason it is unnecessary to address the defendants’ notice of contention which advances an alternative ground for upholding the Associate Judge’s refusal to set aside or vary the SEO’s. Nevertheless, having found that the Associate Judge erred in concluding that the plaintiffs breached the SEO’s it is necessary to consider whether any further orders should be made to take account of the fact that the proceeding remains on foot.
[30]Transcript of Proceedings, T 195 L 11–14 (25 March 2022).

Mr Bourke QC submitted that in the event that the Court concluded that the SEO’s, properly construed, prevented the plaintiffs from filing further expert evidence and/or particulars, the Court should vary the orders nunc pro tunc to permit the plaintiffs to file further evidence.[31] I reject this submission.
[31]Ibid T 195 L 29 – T 196 L 3.

At the outset of the hearing of the appeal the plaintiffs were seeking the following orders:

(i)The plaintiffs to file and serve within 60 days of the appeal judgment an expert report of Mr Gerard King and Mr Robert Gemmell relating to the plaintiffs’ claim for loss and damage;
(ii) The defendants to file and serve expert reports relating to the plaintiffs’ claim for loss and damage within 120 days of the appeal judgment;
(iii) The plaintiffs file and serve any expert report in reply within 150 days of the appeal judgment.[32]

[32]AB2315, ‘Exhibit to Affidavit of Ian Nathaniel dated 17 March 2022’, [5]–[7].

In an affidavit sworn 17 March 2022 Mr Nathaniel deposed that ‘it is considered preferable to seek the assistance of new experts [Messrs King and Gemmell] rather than seeking an additional report of Mr Watson’.[33]
[33]AB2309, ‘Exhibit to Affidavit of Ian Nathaniel dated 17 March 2022’, [14].

During the hearing of the appeal on 24 and 25 March 2022 the plaintiffs altered their position. During submissions in reply Mr Bourke QC submitted that the plaintiffs no longer sought orders for the filing of expert reports by Messrs King and Gemmell. Rather, the plaintiffs sought leave to file a supplementary report of Mr Watson within 45 days of the appeal judgment.[34]
[34]Transcript of Proceedings, T 182 L 19–21, T 196 L 1–3, T 199 L 10 (25 March 2022).

I reject the plaintiffs’ application to vary the February 2021 orders to permit the plaintiffs to file and serve a supplementary report of Mr Watson. To grant the plaintiffs leave to do so would be a fundamental and unjustified departure from the February 2021 orders. The February 2021 orders imposed an obligation upon the plaintiffs to file and serve the Watson report by 31 May 2021. If the report had been filed on 1 June 2021 the proceeding would have automatically been dismissed. The orders sought by the plaintiffs seeking leave to file a supplementary Watson report would subvert the operation of the 18 February 2021 orders. The effect of these orders was to preclude the plaintiffs from filing any further expert evidence on loss and damage and particulars of loss beyond those provided for in the orders. Mr Bourke QC described the task of briefing Mr Watson to address the deficiencies which had been identified in his report as ‘a huge exercise’.[35] The plaintiffs could not possibly have filed a supplementary report of Mr Watson without enlivening the SEO because Mr Watson’s report was filed on 31 May 2021, the last date available to do so without enlivening the SEO.
[35]Ibid T 182 L 31.

Consent orders were made on 9 December 2020 for the plaintiffs to file and serve the Watson report by 3 May 2021. On 18 February 2021 the plaintiffs initially sought to extend the time for filing Mr Watson’s report to 13 August 2021, altered to 15 July 2021 during the hearing on 18 February 2021. The Associate Judge extended the date of 3 May 2021 by four weeks to 31 May 2021. In ‘Other Matters’ the Associate Judge referred to Jorgenson v Slater & Gordon Pty Ltd[36] in support of the proposition that a self-executing order is intentionally penal in character and has several purposes: to signify the Court’s disapproval of prior non-compliance; to emphasise the importance of obedience to Court orders; and to secure the performance of particular procedure step(s) the subject of the orders. The Associate Judge’s conclusion that the plaintiffs have been persistently dilatory in prosecuting this proceeding is correct. The making of a self-executing order was justified. The order proposed by the plaintiffs granting leave to file a supplementary report of Mr Watson is not an order ‘which ought to have been made’ by the Associate Judge. Nor is it a ‘further or other order as the case may require’.
[36][2008] VSCA 110.

The plaintiffs’ history of being persistently dilatory in prosecuting the proceedings strongly supports the plaintiffs being held to the Watson report filed on 31 May 2021 and the particulars filed on 21 June 2021. When the orders were made on 18 February 2021 the plaintiffs had three months to comply with the filing date of 31 May 2021. As noted by her Honour, Mr Watson had informed the plaintiffs’ solicitor on 18 December 2020 that a period of one month would be sufficient for him to complete his report.[37] Notwithstanding the plaintiffs’ history of being persistently dilatory in prosecuting the proceeding, the plaintiffs were granted an extension of time for filing the Watson report and further and better particulars. Nevertheless, it is clear from the terms of the orders and the Associate Judge’s ruling that 31 May 2021 and 21 June 2021 were the ‘drop dead date’ for the filing of the Watson report and the further and better particulars upon which the plaintiffs would be permitted to rely at trial.
[37]AB1015, ‘Orders of the Associate Judge dated 18 February 2021’, ‘Other Matters’ at H.

The orders proposed by the plaintiffs will further delay the trial of the proceeding. The plaintiffs propose a 45-day period within which to file a supplementary report of Mr Watson. In addition to this delay there is the prospect of the plaintiffs filing further particulars of loss and damage based on any revised opinion of Mr Watson regarding the extent of the plaintiffs’ loss and damage. Mr Bourke QC described the liability claim as ‘an oral conversation case’.[38] In other words, whether the plaintiffs can establish that the defendants engaged in tortious conduct as alleged will turn primarily on competing accounts of conversations between the plaintiffs and the defendants. Schedule 2 of the third FASOC is a ‘schedule of conversations’. This schedule underpins the particulars of the ‘CFMMEU demand’ and ‘CFMMEU threat’ pleaded in paragraph 12(a) and (b) of the third FASOC. Thirteen of the conversations fall within the period 15 October 2009 to 17 December 2009. These conversations are described as ‘October 2010 onwards’ and ‘25 May 2011’. Having regard to the significant passage of time since these conversations, any further delay in the proceeding will cause significant prejudice to the defendants. I refuse the plaintiffs’ application to amend the February 2021 orders to permit the plaintiffs to file and serve a supplementary report of Mr Watson.
[38]Transcript of Proceedings, T 43 L 27 (24 March 2022).

Application for leave to file and serve a fourth FASOC.

Mr Bourke QC conceded that based on the Watson Report and the June 2021 particulars, parts of the third FASOC should be struck out because there is no proper basis for the claims.[39] In light of this concession there is no basis for concluding that her Honour erred in refusing to grant leave to the plaintiffs to file and serve the proposed fourth FASOC. The proposed fourth FASOC pleads claims for damages currently pleaded in the third FASOC which do not have a proper basis because the claims are not supported by either the Watson Report or the June 2021 particulars. However, in light of my finding that the proceeding should not be dismissed for non-compliance with the SEO’s there is utility addressing the question of how the third FASOC should be amended to correspond with the Watson Report and the June 2021 particulars. Further, as recorded in her Honour’s ruling, there are some matters set out in the proposed four FASOC which are not contentious. The plaintiffs will be given leave to plead these matters.
[39]Transcript of Proceedings, T 196 L 10–15, (25 March 2022).

Paragraph 19 of the third FASOC pleads:

(a)       painting sub-contractor Onal Painting;
(b)       Elevator sub-contractor Shotton Group Pty Ltd;
(c)       Roofing sub-contractor Malcolm Tilley;
(d)       Brick laying sub-contractor Adwill Bricklayers Pty Ltd;
(e) Electrical sub-contractor William Pepe, trading variously as Nationwide Electrical, BWS Group (Vic) Pty Ltd, Caledy Constructions and NWE (Vic) Pty Ltd; and

(f) Electrical sub-contractor Schembri Electrical Services:
(i) increased price charged for their work to reflect the higher costs to for working in accordance with the EBA; and
(ii) took longer to complete their work by reasons of having to work in accordance with the EBA.

The Watson Report Critique contends that Mr Watson concluded there was no damage in respect of:

(a)       Onal Painting ([253]–[256]);
(b)       Adwill Bricklayers Pty Ltd ([138]–[145]);
(c)       NWE ([278]–[290]); and

Mr Watson did not address whether any loss had been sustained by Shotton Group Pty Ltd, Malcolm Tilley or the William Pepe businesses other than NWE (Vic) Pty Ltd. The claims in respect of these sub-contractors should be struck out as they are not supported by the Watson Report. There is no proper basis for the claims made in respect of them in paragraph 19 of the third FASOC.

The proposed fourth FASOC seeks to add claims in respect of two sub-contractors which were assessed in the Watson Report but not referred to in paragraph 19 of the third FASOC: Diangel Constructions Pty Ltd (Watson at [181]–[194]); Golden Tower Construction Services Pty Ltd/Moborak Rahimi (Watson at [244]–[252]). The Associate Judge’s ruling notes that the defendants do not object to the plaintiffs being permitted to make claims in respect of these sub-contractors.[40] In light of this concession the plaintiffs will be permitted to plead claims for damages in respect of Diangel Constructions Pty Ltd and Golden Tower Construction Services Pty Ltd as set out in paragraph 19 (vii) and (viii) of the proposed fourth FASOC.
[40]Self-executing order ruling (n 1) [113].

Paragraph 22(a) to (g) of the third FASOC pleads that ten contractors:

(i) were not willing to enter into the EBA;
(ii) ceased performing work at the Pentridge Site; and
(iii) were replaced by other contractors who worked at a higher price over a longer period of time by reason of working in accordance with the EBA.

Paragraph 22(h) of the third FASOC pleads that Hanson Construction Materials and CSR Semex;

(i) were refused entry to the site;
(ii) ceased supplying concrete; and
(iii) were replaced by XL Concrete Pty Ltd which supplied concrete at a higher price.

The Watson Report Critique identifies the following replacement contractors who are the subject of claims pleaded in paragraph 22 of the third FASOC as either having incurred no loss as a consequence of working in accordance with the EBA or as not having been assessed for loss:

(i) Rodney Narracott, Lagano Homes, Mark Buhajiar and Michael Merceieca ([22(b)] to [22(d)]);

(ii) Nobletex Rendering Pty Ltd ([22(e)]);
(iii) Costa Constructions, Nu Con Design and Construction, National Crane Hire ([22(f)]); and

(iv) XL Concrete Pty Ltd ([22(h)]).

Based on the Watson Report Critique the claims in respect of these contractors are not supported by the Watson report. As such, there is no proper basis for the plaintiffs to plead any loss in respect of these companies. Any reference to these sub-contractors in the third FASOC should be deleted.

Her Honour’s ruling notes that the defendants do not object to paragraph 12A(ii) of the proposed fourth FASOC provided it is in the following form:

(ii)submitting to work practices at the Pentridge Site applied under prescription in a CFMMEU Pattern Agreement concerning work cycles and rostered days off and inclement weather.

In light of the defendants’ concession the plaintiffs will be granted leave to plead paragraph 12A(ii) of the proposed fourth FASOC.
CONCLUSION

The Associate Judge erred in concluding that the proceeding should be dismissed on the grounds of non-compliance with the SEO’s. Appeal ground 2 of the amended notice of appeal dated 17 February 2022 is upheld. Paragraph 1 of the orders of 7 February 2022 dismissing the proceeding will be set aside. The appeal against the Associate Judge’s refusal to grant the plaintiffs leave to file and serve the proposed fourth FASOC is dismissed. The plaintiffs’ application to vary 18 February 2021 orders to permit the filing of a supplementary Watson report is rejected.

I will direct the plaintiffs to serve on the defendants within 14 days of the orders giving effect to this judgment a proposed fourth FASOC which conforms with these reasons for judgment. If the defendants consent to the proposed fourth FASOC the plaintiffs will have leave to file the amended statement of claim. If the defendants do not agree to the proposed fourth FASOC the plaintiffs will need to apply by summons to file the amended pleading. I will provide the parties with an opportunity to make submissions on the costs of the appeal.

Annexure A Chronology

Date	Event	Reference
30/06/2016	Writ and General Indorsement of Claim filed	AB1708
22/08/2017	Statement of Claim filed	AB1720
01/12/2017	ASOC filed
02/02/2018	Amended Writ and General Indorsement of Claim filed	AB1755
02/03/2018	Strike out summons filed by the CFMMEU Defendants (First Strike Out Application)
13/04/2018	Orders made by consent providing the plaintiffs with leave to file a Further Amended Statement of Claim (the FASOC)
31/05/2018	FASOC filed	AB1766
14/06/2018	CFMMEU Defendants write to the plaintiffs regarding concerns with respect to the FASOC and made a Request for Further and Better Particulars of the FASOC	AB2365
21/06/2018 – 14/08/2018	Further and Better Particulars of FASOC are due to be filed on 21/08/2018. The plaintiffs make a number of requests for extensions of time.	AB2370-2, 2398-2403
17/09/2018	Response to the Request for Further and Better Particulars of FASOC filed (the September 2018 Particulars)	AB2404-5
01/10/2018	The CFMMEU Defendants serve a Notice to Produce requiring production of documents referred to in the FASOC and notify the plaintiffs of their intention to apply to strike out parts of the FASOC	AB2410
11/10/2018- 23/10/2018	The CFMMEU Defendants and the plaintiffs exchange correspondence regarding the deficiencies in the pleadings between May 2018 and November 2018 (see First Naughton Affidavit at JN-1). The plaintiffs propose that the pleadings will be cured at a later date, stating that they had: “provided the best particulars available to them at this early stage of the proceeding” and that they intended to “invoke interlocutory processes in order to obtain information and to conduct the analysis needed to prepare further particulars”.	AB2418–31
02/11/2018	Summons filed by the CFMMEU Defendants to strike out the FASOC (the Second Strike Out Application)	AB1023-4 [3]
01/02/2019	The plaintiffs file and serve outline of submissions in response to the second strike out application. In the covering letter to the summons the plaintiffs state that they intend to propose a revised statement of claim.	AB1071-2, 1099
04/02/2019	CFMMEU Defendants write noting that if the plaintiffs intend to seek leave to amend the FASOC, they should make an application	AB1072, 1099
05/02/2019	The plaintiffs purport to file an amended version of the summons filed on 04/02/2018 to also seek an order that the plaintiffs have leave to file a Second Further Amended Statement of Claim (Second FASOC)	AB1073 [19]-[20], 1103
06/02/2019	The plaintiffs provide a proposed second FASOC and proposed amended further and better particulars	AB1073 [22]
12/02/19	Orders are made by the Associate Judge following appearances at a directions hearing. The ‘other matters’ section of the orders provided at para C, that in their proposed second FASOC, the plaintiffs had deleted claims made in the FASOC that the CFMMEU Defendants had ‘caused or contributed to loss and damage referrable to: (i) delays in completing construction works by dates stipulated in construction contracts for the purchase of dwellings and land in the Pentridge Village Project, (ii) the rescission of customer contracts for the purchase of dwellings and land in the Project,(iii) the inability to service the loan facility for the Project,(iv) the cessation of the loan facility for the Project,(v) the ultimate cessation of construction works; and (vi) the failure of the Project (the abandoned loss allegations). In removing the abandoned loss allegations, the plaintiffs were not to be taken to detract from the cost and delay claims (defined below)’. The plaintiffs were given leave to file and serve their proposed second FASOC and further particulars (Second FASOC Particulars) and the defendants were ordered to file defences. The plaintiffs were also required to issue subpoenas to sub-contractors and then, by 4 July 2019, provide further particulars in relation to those subcontracts (the February 2019 Orders).	AB939, 946
15/02/2019	The Plaintiffs filed their second FASOC and second FASOC particulars	AB1834
25/03/2019	The third plaintiff filed 52 subpoenas, addressed to various subcontractors for production to the Prothonotary. No documents are produced in response to these subpoenas.	AB1122 [13]–[18], 1144, 1214, 1222
30/04/2019	The CFMMEU Defendants file defences to the second FASOC	AB1953
10/07/2019	Orders are made by consent. The plaintiffs were given leave to extend the time in which to file and serve further and better particulars (following the production of subpoenas) to 26 July 2021 (the July 2019 Orders).	AB1123 [19]
31/07/2019	The Plaintiffs served further and better particulars of the second FASOC in relation to subcontractors (the July 2019 Particulars).	AB1123 [22]
28/08/2019	The CFMMEU Defendants wrote to the plaintiffs outlining the bases on which the CFMMEU Defendants proposed to file a third strike out application.	AB1117 [4], 1133–43
09/09/2019	A Summons is filed by the CFMMEU Defendants to strike out parts of the second FASOC and the July 2019 Particulars (the Third Strike Out Application).	AB1116 [3]
18/02/2020	Ruling on the Third Strike Out Application. Orders are made to strike out a number of paragraphs of the second FASOC and the July 2019 Particulars (the February 2020 Ruling).	AB939–54
03/03/2020	The 3 March 2020 orders give effect to February 2020 Ruling (the March 2020 Orders)	AB955–8
27/04/2020	The Plaintiffs file a summons seeking leave to file and serve a proposed third FASOC	AB1436 [3]
30/04/2020	The CFMMEU Defendants request further and better particulars of the proposed third FASOC	AB1437 [4], 1442, 1500 [18]–[19], 1527–43
May 2020	Further and better particulars of the proposed third FASOC are due to be filed on 20 May 2020. The filing is delayed. The parties exchange correspondence relating to the delay.	AB1498–500, 1501 [20]–[23], 1517–26
19/05/2020	The Court makes orders, on the Court’s own motion requiring the plaintiffs to provide particulars of their proposed third FASOC the following day (20 May 2020)	AB1501 [20]
21/05/2020	The Court makes orders relisting Plaintiffs’ summons seeking leave to file and serve a proposed third FASOC to 16 July 2020. The plaintiffs were ordered to provide a response to the CFMMEU Defendants’ request for particulars by 24 June 2020.	AB1501 [23], 1622–5
26/06/2020	Further and better particulars of the proposed third FASOC are filed by the plaintiffs (the June 2020 Particulars)	AB1501 [24]
3/07/2020	The CFMMEU Defendants object to the adequacy of the June 2020 Particulars and prepare a detailed table of requests for additional particulars (the July 2020 Particulars Request)	AB1501–2 [25]–[27], 1544–6
13/07/2020	Orders are made on the papers. In the ‘Other Matters’ to the Orders, the Court records that the CFMMEU Defendants do not oppose leave being granted to the plaintiffs to file and serve a third FASOC and the June 2020 Particulars on the basis that the plaintiffs answer the July 2020 Particulars Request. The Court orders that answers be provided by the plaintiffs by 14 August 2020. The July 2020 Particulars Request is Annexed to the July 2020 Orders. (the July 2020 Orders)	AB959–1004, 1503 [28]
14/07/2020	The plaintiffs file and serve the third FASOC and the June 2020 Particulars
11/08/2020	The plaintiffs write to the CFMMEU Defendants and indicate that they will not be in a position to file and serve all of the additional particulars contemplated by the 13 July 2020 orders.	AB1503 [30], 1547–8
18/08/2020	The plaintiffs provide some particulars, but advise that they could not provide complete particulars due to the Stage 4 lockdown restrictions (the August 2020 Particulars)	AB1503 [32]
03/09/2020	The CFMMEU Defendants request documents referred to in the August 2020 Particulars	AB1504 [33]–[37], 1550–5
23/09/2020	The CFMMEU Defendants take issue with the adequacy of the August 2020 Particulars and request further documents	AB1504–5 [38]–[39], 1556–61
04/11/2020	Orders are made on the papers. The directions hearing is otherwise adjourned to 18 February 2021. In the ‘Other Matters’ to the Orders, it is recorded that the plaintiffs intend to produce additional documents including documents referred to in the August 2020 Particulars (the November 2020 Orders).	AB1005–7, 1505 [42]
01/12/2010	The Plaintiffs advise the CFMMEU Defendants by letter that they have instructed Mr David Watson to prepare an expert report in respect of loss and damage (Watson Report). The plaintiffs provide the CFMMEU Defendants with copies of two letters of instructions. The plaintiffs propose orders to the effect that the June Particulars 2020 and the August 2020 Particulars be struck out and that the plaintiffs deliver particulars in response to the April 2020 Request (proposed Substitute Particulars) following receipt of the proposed Watson Report (the 1 December 2020 Proposal).	AB1506 [44]–[46], 1527–97
09/12/2020	Orders are made on the papers, striking out the third FASOC and the June 2020 and August 2020 Particulars. The plaintiffs were ordered to file and serve the Watson report by 3 May 2020 and the Substitute Particulars by 31 May 2020 (the December 2020 Orders). In the ‘Other Matters’ to the orders, it is noted that the CFMMEU Defendants do not concede that the matters set out in the Watson Instructions accord with the case pleaded in the third FASOC and reserve the right to apply to strike out or otherwise object to any part of the third FASOC, the proposed Watson Report or the proposed Substitute Particulars.	AB1008–12, 1509 [57]
18/02/2021	Directions hearing with the parties appearing. The plaintiffs sought extensions to file and serve the Watson Report and the Substitute Particulars. The CFMMEU Defendants sought self-executing orders in the event of the plaintiffs’ non-compliance with the orders. The Court made self-executing orders. The plaintiffs were required to file and serve the Watson Report by 31 May 2021 and the Substitute Particulars by 21 June 2021 (the February 2021 Self-executing Orders).	AB1013–8
31/05/2021	The plaintiffs file and serve the Watson Report. The covering email to the report states that the plaintiffs ‘reserve the right’ to apply to the Court to file and serve an amended or supplementary expert report.	AB309 [7(b)], 314
01/06/2021	The CFMMEU Defendants write to the plaintiffs indicating that any attempt by the plaintiffs to file and serve further expert evidence would be a breach of the self-executing orders.	AB309 [7(b)], 316
21/06/2021	The plaintiffs file and serve the June 2021 Particulars (the June 2021 Particulars)	AB648–938
16/07/2021	The plaintiffs write to the CFMMEU Defendants seeking to adjourn the directions hearing scheduled for 22 July 2021. The plaintiffs propose to ‘provide’ the CFMMEU Defendants with a proposed fourth FASOC by 23 July 2021.	AB327
22/07/2021	Directions hearing at which the parties appear. In the ‘other matters’ to the orders, the Court noted that it had intended to program the matter for trial at the directions hearing, however the plaintiffs were not ready, as they had foreshadowed a further amendment to their statement of claim. The Court orders that the plaintiffs must file and serve any application for leave to amend their third FASOC, together with their proposed fourth FASOC, all other relevant materials in support and a minute of orders they propose to seek by 28 July 2021 (the July 2021 Orders). The proceeding was listed for further hearing on 7 October 2021.	AB1019 Transcript of Proceedings, T 3 L 25; T 4 L 2, 28 (22 July 2021)
28/07/2021	The plaintiffs file a summons for leave to further amend the third FASOC. The summons is accompanied by a proposed fourth FASOC and proposed orders. The proposed orders included the following. ‘2. By 4:00 pm on 11 October 2021, the Plaintiffs have leave to file and serve updated further and better particulars as to loss and damage… 5. By 4:00 pm on 11 October 2021, the Plaintiffs have leave to file and serve a supplementary report of David Watson’.	AB166, 172, 194
30/07/2021	The CFMMEU Defendants write to the plaintiffs seeking clarification in relation to the status of the June 2021 Particulars, in light of the plaintiffs’ application for leave to amend in the form of the then-proposed fourth FASOC.	AB309 [7(a)], 333
02/08/2021	The plaintiffs assert that the June 2021 Particulars are still valid and will be relied upon	AB309 [7(a)], 337
20/08/2021	The CFMMEU Defendants provide the plaintiffs with a detailed outline of their objections to the proposed fourth FASOC and the June 2021 Particulars (the 20 August 2021 objection letter)	AB211–26
27/08/2021	The Ninth Defendant writes to the plaintiffs confirming that in the absence of a full response to the 20 August 2021 objection letter, they would oppose leave for the plaintiffs to file the proposed fourth FASOC	AB229
06/09/2021	The plaintiffs respond to the 20 August 2021 objection letter. The plaintiffs accept that aspects of the 21 June Particulars were not properly formulated and indicate that the plaintiffs propose file and serve revised particulars of loss and damage. The plaintiffs also attached a revised fourth FASOC, in response to matters raised by the CFMMEU Defendants in the 21 August 2021 objection letter. (the Revised fourth FASOC).	AB231–40, 247–67
23/09/2021	The CFMMEU Defendants file submissions: (a) opposing leave to amend, to the extent that the proposed amendments were either unparticularised or not supported by the Watson Report; (b) objecting to the plaintiffs being permitted to rely on the June 2021 Particulars in their current form.	AB304
01/10/2021	The Ninth Defendant files submissions opposing the plaintiffs’ application	AB372
5/10/2021	The plaintiffs serve the Fourth Nathaniel Affidavit which states that Piper Alderman has conducted a review of the June 2021 Particulars and the Watson Report and had identified several ‘issues’ in those materials	AB376
06/10/2021	Counsel for the CFMMEU Defendants emails opposing counsel, enclosing a set of proposed orders	AB2160
06/10/2021	The plaintiffs email several documents to the Court and the CFMMEU Defendants. Those documents include a table titled “Watson Report and Particulars dated 21 June 2021 in respects of paragraphs 19 & 22 of the fourth FASOC Subcontractors” (Plaintiffs’ Table).	AB2193
07/10/2021	Hearing of the plaintiffs’ summons / application for leave to amend. In accordance with the position which had been foreshadowed the previous day, the CFMMEU defendants make an oral application for the self-executing orders to be given effect. During oral submissions in reply, counsel for the plaintiffs makes an oral application that the self-executing orders be varied or set aside.	Transcript of Proceedings, T 2 L 23; T 87 L 15 (7 October 2021) AB75, 160
17/12/2021	Ruling and Reasons: [2021] VSC 848. The Court determined to dismiss the plaintiffs’ proceeding by reason of their non-compliance with the February 2021 self-executing orders.	AB22
17/02/2022	The plaintiffs file and serve their amended Notice of Appeal.	AB1

SCHEDULE OF PARTIES

S CI 2016 02556

BETWEEN:

PENTRIDGE VILLAGE PTY LTD (IN LIQUIDATION) (ACN 087 151 068)	First Plaintiff
WEST HOMES AUSTRALIA PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (ACN 004 964 185)	Second Plaintiff
LEIGH CHIAVAROLI	Third Plaintiff
- and -
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION	First Defendant
BILL OLIVER	Second Defendant
JOHN SETKA	Third Defendant
IVAN DADIC	Fourth Defendant
~~KEN HARDY~~	~~Fifth Defendant~~
ANTON SUCIC	Sixth Defendant
GERALD BENSTEAD	Seventh Defendant
SHAUN REARDON	Eighth Defendant
~~MARIO AMENTA~~	~~Ninth Defendant~~

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[2022] VSC 303

8 June 2022