Powerbase Holdings Pty Ltd v Clinton & Co Plumbers and Gasfitters Pty Ltd
[2020] WASC 481
•5 JANUARY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: POWERBASE HOLDINGS PTY LTD -v- CLINTON & CO PLUMBERS AND GASFITTERS PTY LTD [2020] WASC 481
CORAM: REGISTRAR WHITBY
HEARD: 11 DECEMBER 2020
DELIVERED : 11 DECEMBER 2020
PUBLISHED : 5 JANUARY 2021
FILE NO/S: CIV 2840 of 2017
BETWEEN: POWERBASE HOLDINGS PTY LTD
Plaintiff
AND
CLINTON & CO PLUMBERS AND GASFITTERS PTY LTD
First Defendant
COOKE & DOWSETT PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Rules of the Supreme Court, O 26 r 6 - Application for further and better discovery - Principles to be applied - Relevance of documents
Legislation:
Rules of the Supreme Court 1971 (WA), O 26 r 6
Result:
Orders for further and better discovery made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr P Mendelow |
| First Defendant | : | Mr G Hancy |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | McCabe Curwood |
| First Defendant | : | Gilchrist Connell |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Perpetual Trustees Company Ltd v Burniston [2012] WASC 26
Youlden Enterprises Pty Ltd & Anor v Health Solutions (WA) Pty Ltd & Ors [2005] WASC 60
REGISTRAR WHITBY:
This is the first defendant's application made by chamber summons dated 9 October 2020 for orders for further and better discovery from the plaintiff (application).
Background
In October 2015, the plaintiff started occupying level 3 of the King's Square III building (building) pursuant to a lease between the plaintiff and Dexus Management Limited (Dexus).
The plaintiff made improvements to level 3 of the building which included installing special flooring and gym equipment to allow it to operation a gym and health club.[1]
[1] Amended Writ of Summons dated 22 January 2019 pars 4, 5
Dexus occupied level 9 of the building. Between October 2015 and June 2016, the first defendant, pursuant to a contract with Dexus, installed, tested and commissioned a basin, shower and toilets on level 9 of the building. The basin, shower and toilets were connected to sewer stacks of PVC pipe which extended in a continuous vertical line through the building to the basement (sewer stack).[2]
[2] Amended Writ of Summons dated 22 January 2019 pars 6, 8 and Re-Amended Defence of the First Defendant pars 4, 5.
The sewer stack was originally installed in the building, tested and commissioned by the second defendant.[3]
[3] Amended Writ of Summons dated 22 January 2019 par 18; Defence of the Second Defendant dated 13 March 2020 par 18.
On 16 June 2016, Dexus engaged the first defendant to do the plumbing maintenance for the building.[4]
[4] Amended Writ of Summons dated 22 January 2019 par 7 and Re-Amended Defence of the First Defendant par 4.
On 19 July 2016, the first defendant, at the request of Dexus, attended the building to clear blocked toilets on level 9. The first defendant was unsuccessful in clearing the blockage.[5]
[5] Amended Writ of Summons dated 22 January 2019 pars 9, 10 and Re-Amended Defence of the First Defendant pars 6, 7.
On 20 July 2016, the first defendant attended level 9 again and cut an inspection opening into the sewer stack in order to gain access to clear the blockage.[6]
[6] Amended Writ of Summons dated 22 January 2019 par 11 and Re-Amended Defence of the First Defendant par 8.
On 21 July 2016, the first defendant attended level 9 again and made further attempts to unblock the sewer stack by inserting a drain machine with metal rods attached into the sewer stack. During this process, raw sewage flowed from the change room walls on level 3 of the building.[7]
[7] Amended Writ of Summons dated 22 January 2019 par 13 and Re-Amended Defence of the First Defendant pars 9, 10.
The first defendant removed the change room walls on level 3 and upon inspection of the sewer stack, found that the PVC pipe of the sewer stack was cracked.[8]
[8] Amended Writ of Summons dated 22 January 2019 par 14 and Re-Amended Defence of the First Defendant par 11.
A sewerage test plug was later found 400 mm below floor level on level 3 of the building.[9]
[9] First Defendant's Answers to the Plaintiff's Interrogatories and Additional Interrogatories served 20 September 2018 and 23 October 2018 dated 6 November 2018 par 19.2.
The plaintiff alleges that it suffered damage because:
(a)the first defendant, in attempting to unblock the sewer stack, was negligent and caused the discharge of raw sewage into level 3;[10] and/or
(b)the second defendant left a test plug in the sewer stack which caused or contributed to the blockage and the subsequent crack in the sewer stack.[11]
[10] Amended Writ of Summons dated 22 January 2019 pars 15 to 17.
[11] Amended Writ of Summons dated 22 January 2019 pars 19, 20.
The first defendant says that, while the work that it did in trying to unblock the sewerage stack did cause the crack and leakage of sewage on to level 3, it was not as a result of its negligence. The first defendant says that the root cause of the cracking of the sewer stack was the fact that a test plug had been left in the sewage stack at the time it was commissioned or handed over, something for which the first defendant was not responsible.[12]
[12] Re-Amended defence of the first defendant par 12.
The second defendant denies that it left a test plug in the sewer stack.[13]
[13] Defence of the second defendant dated 13 March 2020 par 20.
First defendant's application for further and better discovery
By its application, the first defendant seeks an order that:
Within 21 days … the plaintiff do make, file and serve a list, verified by a further affidavit, stating what documents the plaintiff has or has had in its possession, custody or power, and if not now in its possession, custody or power when they were last in its possession, custody or power and what has become of them, from the following categories of documents:
a)the fit-out works completed at level 3 of Kings Square III (particularly the toilet, bathroom and/or end of trip facilities) for the plaintiff; and
b)any testing (including plumbing and sanitary drainage) completed in relation to the facilities installed on level 3
[collectively the further and better discovery documents].
The evidence
The first defendant relies upon the affidavit of Steven De La Nougerede sworn 8 October 2020 (De La Nougerede affidavit) in support of the application.
The plaintiff relies upon the affidavit of Byron Andrew Winburn‑Clarke sworn 11 November 2020 in opposition to the application (Winburn-Clarke affidavit).
The De La Nougerede affidavit and the Winburn-Clarke affidavit are taken as read.
Further and better discovery - Legal principles
Order 26 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC) provides:
6.Order for information as to particular documents
(1)Subject to rule 7 the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.
(2)An order may be made against a party under this rule not withstanding that he may already have made or been required to make a list of documents or affidavit under rule 1 or rule 7.
(3)An application under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document or class of document specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.
The legal principles applicable to an application for further and better discovery pursuant to O 26 r 6 RSC are articulated in Perpetual Trustees Company Ltd v Burniston:[14]
[14] Perpetual Trustees Company Ltd v Burniston [2012] WASC 26 (Edelman J).
[29]… there are … three requirements to satisfy:
(1)the court has reasonable grounds for being fairly certain that the documents sought (or class of documents sought) are in existence;
(2) those documents sought are relevant; and
(3) those documents ought to have been disclosed.
[30]The reference in (2) to relevant documents is, of course, a reference to documents which may either (a) advance a party's case or damage his or her opponent's case or (b) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63 (Brett LJ); Mulley & Marney v Manifold [1959] HCA 23; (1959) 103 CLR 341, 345 (Menzies J).
…
[32]The reference in (3) to documents … which ought to have been disclosed requires reasonable grounds to believe that those documents are in the possession, custody or power of the party against whom discovery is sought. In O 26 r 6 it is sufficient to show that there are reasonable grounds to believe that those documents were once in the possession, custody or power of the other party.
Existence of documents
The first requirement the first defendant must satisfy is that there are reasonable grounds for being fairly certain that the further and better discovery documents exist.
In his affidavit, Mr De La Nougerede deposes that, in his belief, the further and better discovery documents exist.[15]
[15] De La Nougerede affidavit par 15.
The first defendant submits that it is clear from the evidence of the plaintiff itself that the further and better discovery documents exist. The Winburn-Clarke affidavit, at par 7 and par 8, deposes:
7.I am instructed by Mr Taylor a Director of the Plaintiff that in or about October 2015 the Plaintiff was given access to the Premises to commence the fitout of the tenancy and to use that tenancy as a gymnasium. At that time, the plumbing pipes were in place, the connection to the main stack had been established, there were no internal walls, toilets, basins or tiling, however plumbing pipes were sticking up out of the slab and were otherwise in the external walls where they had been installed by the Second Defendant.
8.I am further advised by Mr Taylor and verily believe:
8.1.that in the period October to December 2015 the Level 3 tenancy fitout was completed by Advanced Building Corporation and its sub-contractors, the details of which are not known to the Plaintiff;
8.2.the Level 3 tenancy fitout involved the placement of internal walls, tiling of wet areas, installation and connection of showers, toilets and basins to the existing plumbing pipes which had been left in situ by the Second Defendant during construction;
8.3.that in the period between December 2015 and June 2016 the Plaintiff occupied the Premises and it was utilised as a gymnasium. The toilets, basins and showers operated and there were no blockages.
The plaintiff submits that the first defendant has not satisfied the court that there are reasonable grounds to be certain that the further and better discovery documents exist. This is because, at par 8.1 of the Winburn‑Clarke affidavit, Mr Winburn-Clarke deposes that Mr Taylor says that the level 3 fit-out works were completed by Advanced Building Corporation and its subcontractors, details of which are not known to the plaintiff (emphasis added). Counsel for the plaintiff submits that, in light of this evidence, the court cannot be fairly certain that documents exist which shed light on whether or not the test plug was placed or left in the sewer stack by plumbing contractors to Advanced Building Corporation who completed the fit out works on level 3.[16]
[16] Transcript 11 December 2020 page 15.
In order to satisfy the first requirement, I must be fairly certain that the further and better discovery documents exist, not whether documents in the categories sought by way of further and better discovery that will shed light on whether sub-contractor left a test plug in the sewer stack exist. I am satisfied that, given the plaintiff admits that fit-out works were completed on level 3 between October to December 2015, that there are reasonable grounds for being fairly certain the further and better discovery documents exist.
Relevance of the documents
Once satisfied that there are reasonable grounds for being fairly certain that the further and better discovery documents exist, the next requirement is that those documents must be relevant.
First defendant's submissions
The first defendant submits that the further and better discovery documents are relevant to the matters in issue for the following reasons:
(a)a test plug was found on level 3 of the building after the crack in the sewer stack occurred;[17]
[17] First Defendant's Answers to the Plaintiff's Interrogatories and Additional Interrogatories served 20 September 2018 and 23 October 2018 dated 6 November 2018 par 19.2.
(b)by par 16 of the re-amended defence, the first defendant pleads that:
If the plaintiffs suffered loss and damage (which is not admitted) as alleged, that loss and damage was caused or contributed to by the negligence of the plumbing subcontractor responsible for the Building's plumbing during construction, handover and testing: Cooke & Dowsett Pty Ltd (Cooke & Dowsett), the second defendant and it was therefore a 'concurrent wrongdoer' as is also defined in s5AI of the [Civil Liability Act];
(c)by affidavit of Alena Zoric sworn on 19 May 2020 filed on behalf of the second defendant (Zoric affidavit), Ms Zoric deposed, at par 4(d), that she was informed by Mr Jeff Hegarty, of the second defendant, that the fit out of level 3 of the building was not part of the second defendant's works under its subcontract with the builders (Leighton Properties (WA) Pty Ltd and Probuild Constructions (Aust) Pty Ltd);
(d)therefore, the second defendant denies leaving a test plug in the sewer stack;[18]
(e)this puts in issue who left the test plug in the sewer stack;
(f)whether another contractor engaged to do the level 3 fit-out works left a test plug in the sewer stack as part of those works, or conversely did not and could never have left the test plug in the sewer stack is relevant to the issues in the action;
(g)the plaintiff admits that level 3 fit-out works were completed from October to December 2015 which involved the placement of internal walls, tiling of wet areas, installation and connection of showers, toilets and basins to the existing plumbing pipes on level 3;[19] and
(h)the further and better discovery documents go to whether a test plug could or could not have been placed or left in the sewer stack by a contractor as part of those works and are therefore relevant to the issues in the action.
Plaintiff's submissions
[18] Defence of the Second Defendant dated 13 March 2020 par 20.
[19] Winburn-Clarke affidavit pars 7 and 8.
The plaintiff submits that the further and better discovery documents are not relevant because:
(a)the connection of plumbing fixtures on level 3 to the sewer stack is approximately 690 mm below the floor level;[20]
(b)the test plug was found 400 mm below the level 3 slab, making the test plug 290 mm above the level 3 connection to the sewer stack;[21]
(c)given that the sole purpose of a test plug is to test the water holding integrity of the plumbing fixtures, any test plug must be installed below the connection point of the fixtures to the sewer stack. It follows that the test plug could not have been installed during any plumbing fit-out of level 3 of the building, as the test plug was found above the level 3 plumbing connections to the sewer stack;[22]
(d)given the evidence demonstrates, prima facie, that the test plug that was found could never have been left there during the level 3 fit-out works, none of the further and better discovery documents are relevant.
[20] Winburn-Clarke affidavit par 6.
[21] Winburn-Clarke affidavit par 12.
[22] Winburn-Clarke affidavit par 13.
In addition, the plaintiff submits that the first defendant is engaging in a fishing expedition in an attempt to find out if anyone else is responsible for the test plug being left in the sewer stack. The only issue on the pleadings, the plaintiff submits (as evident from par 20 of the Amended Writ of Summons dated 22 January 2019 and par 16 of the Amended Defence of the First Defendant dated 14 February 2019), is whether the test plug was left in the sewer stack by the second defendant, not whether anyone else left it there.
Determination
In order to assess whether documents are relevant or not, the court must have regard to the pleadings and the conduct and admissions of the parties: Youlden Enterprises Pty Ltd & Anor v Health Solutions (WA) Pty Ltd & Ors.[23]
[23] Youlden Enterprises Pty Ltd & Anor v Health Solutions (WA) Pty Ltd & Ors [2005] WASC 60 [5].
Relevant to this application, the following issues arise on the pleadings:
(a)whether the first defendant was negligent in attempting to unblock the sewer stack using a drain machine with metal rods in the manner it did;[24]
(b)whether a test plug being left in the sewer stack caused or contributed to the cracking of the sewer stack;[25] and
(c)whether the test plug was left in the sewer stack by the second defendant.[26]
[24] Amended Writ of Summons dated 22 January 2019 pars 15 to 17.
[25] Re-Amended Defence of the First Defendant dated 14 February 2019 par 12.
[26] Amended Writ of Summons dated 22 January 2019 pars 19 and 20; Re-Amended Defence of the First Defendant dated 14 February 2019 par 16; Defence of the Second Defendant dated 13 March 2020 par 20.
It is the last of these issues that determines whether or not the further and better discovery documents are relevant. The plaintiff says that it is not in issue whether anyone else left the test plug in the sewer stack, only whether it was the second defendant. The plaintiff says that neither the plaintiff, the first defendant nor the second defendant plead that anyone else left the test plug in the sewer stack - in fact, the plaintiff and the first defendant positively plead that the second defendant left the test plug in the sewer stack and the second defendant denies that it did.
I accept that the matters in issue on the pleadings, as submitted by the plaintiff, are limited to whether or not the second defendant placed and/or left a test plug in the sewer stack. None of the parties plead that the test plug was placed or left in the sewer stack by another contractor. However, it does not follow that the further and better discovery documents are not relevant to whether or not the second defendant placed and/or left a test plug in the sewer stack.
In my view, the further and better discovery documents are documents which may advance, or lead to a train of enquiry that advances, the first defendant's case that the test plug was left in the sewer stack by the second defendant, by excluding the possibility that it was left there by the contractor/s who performed the level 3 fit-out works.
It may well be that the further and better discovery documents also lead to a train of enquiry that another party was responsible for leaving the test plug in the sewer stack, however this fact does not mean that the first defendant in engaging in a fishing expedition - the first defendant is entitled to discovery of documents which may advance its case that it was the second defendant who was responsible for leaving the test plug in the sewer stack by eliminating the possibility that the test plug was left in the sewer stack at the time of the level 3 fit-out works.
Further, the plaintiff's submissions that the further and better discovery documents are not relevant because the location of the test plug in the sewer stack, as deposed to in the Winburn-Clarke affidavit, means that the test plug could not have been left there during fit-out works on level 3 may well be proved true at a trial of the action. However, these are not facts for me to find in this application. Such facts are appropriately the subject of expert evidence.
For these reasons, I find that the further and better discovery documents are relevant to matters in issue.
Disclosure of further and better discovery documents
In order to find that the further and better discovery documents ought to have been disclosed by the plaintiff, the court must be satisfied that there are reasonable grounds to believe that the further and better discovery documents are, or were once, in the possession, custody or power of the plaintiff.
It is not in dispute that the plaintiff occupied level 3 of the building from October 2015,[27] and that the level 3 fit-out works were completed from October to December 2015.[28] It is also not in dispute that the level 3 fit-out works involved the placement of internal walls, tiling of wet areas, installation and connection of showers, toilets and basins to the existing plumbing pipes on level 3.[29]
[27] Re-Amended Statement of Claim dated 22 January 2019 par 4.
[28] Winburn-Clarke affidavit par 8.1.
[29] Winburn-Clarke affidavit par 8.2.
It is reasonable to expect that the plaintiff has, or once had, in its possession, custody or control documents such as contracts, specifications, diagrams and plans that evidence the level 3 fit-out works.
On that basis, there are reasonable grounds to believe that the further and better discovery documents are, or were once, in the possession, custody or control of the plaintiff and therefore ought to have been disclosed.
Summary
I am satisfied that:
(a)there are reasonable grounds to be fairly certain that the further and better discovery documents exist;
(b)the further and better discovery documents are relevant in that they may advance the first defendant's case or damage the second defendant's case; and
(c)there are reasonable grounds to believe that the further and better discovery documents are, or once were, in the possession, custody or control of the plaintiff.
Therefore, I find that the plaintiff ought provide discovery on affidavit of the further and better discovery documents.
Orders
I propose making the following orders:
1.Within 21 days of the date of this order the plaintiff do make, file and serve a list, verified by affidavit, stating what documents the plaintiff has or has had in its possession, custody or power, and if not now in its possession, custody or power, when they were last in its possession, custody or power and what has become of them, from the following categories of documents:
(a)the fit-out works completed at level 3 of King's Square III (particularly the toilet, bathroom and/or end of trip facilities) for the plaintiff; and
(b)any testing (including plumbing and sanitary drainage) completed in relation to the facilities installed on level 3.
2.The plaintiff provide a copy of each of the documents referred to in the list, as are in its possession, custody or power, at the same time as service of the affidavit.
3.The plaintiff pay the first defendant's costs of the application in any event.
In the event that either party seeks to be heard in relation to the orders, they have seven days from the date of these reasons to advise the court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CD
Research Associate/Orderly to the Honourable Justice Buss5 JANUARY 2021
Powerbase Holdings Pty Ltd v Clinton & Co Plumbers and Gasfitters Pty Ltd [2020] WASC 481
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