Queensland Motorways Pty Limited v CPB Contractors Pty Limited
[2023] QSC 107
•17 May 2023
SUPREME COURT OF QUEENSLAND
CITATION: Queensland Motorways Pty Limited v CPB Contractors Pty Limited & Ors [2023] QSC 107 PARTIES: QUEENSLAND MOTORWAYS PTY LIMITED
ABN 50 067 242 513
(plaintiff)
v
CPB CONTRACTORS PTY LIMITED (FORMERLY LEIGHTON CONTRACTORS PTY LIMITED)
ABN 98 000 893 667
(first defendant)ACCIONA INFRASTRUCTURE PROJECTS AUSTRALIA PTY LTD (FORMERLY LENDLEASE ENGINEERING PTY LIMITED AND ABIGROUP CONTRACTORS PTY LTD)
ABN 40 000 201 516
(second defendant)
CIMIC GROUP LIMITED (FORMERLY LEIGHTON HOLDINGS LIMITED)
ABN 57 004 482 982
(third defendant)
LENDLEASE CORPORATION LIMITED (FORMERLY LEND LEASE CORPORATION LTD) ACN 000 226 228
(fourth defendant)
JACOBS GROUP (AUSTRALIA) PTY LTD (FORMERLY SINCLAIR KNIGHT MERZ PTY LIMITED)
ABN 37 001 024 095(first third party/third fourth party) VISIONSTREAM AUSTRALIA PTY LTD ABN 85 093 384 680
(second third party)
COFFEY GEOTECHNICS PTY LTD
ABN 93 056 929 483
(third third party/fourth fourth party)
AECOM AUSTRALIA PTY LIMITED (FORMERLY MAUNSELL AUSTRALIA PTY LIMITED)
ABN 20 093 846 925(fourth third party/fifth fourth party) SMEC AUSTRALIA PTY LIMITED ABN 47 065 475 149
(fifth third party/sixth fourth party)
GATEWAY MOTORWAY SERVICES PTY LIMITED
ABN 41 122 964 872(sixth third party)
|
Plan, es of
the defects listed in the Statement of Claim.”
(b)In respect of category 18(a)(ii) of the Document Plan, CIMIC and Lendlease are relieved from any obligation to make disclosure in respect of that category
(c)In respect of category 19(a) of the Document Plan, the category should be amended and limited to “any documents recording any decision by LAJV not to hold, maintain or renew any LAJV Insurance Policy”.
(d)In respect of the Definition category of the Document Plan “LAJV Insurance Policy” should refer to any Policy of Insurance required to be effected and maintained by LAJV in accordance with Schedule 43 of the Project Deed including Policy number B0621PABI00906, Policy number B0621PABI01006,
Policy number B0621PGAT00707, Policy number B0621PGAT00708, Policy number B0621PGAT00808, Policy number B0621PGAT00709, Contract Endorsement B0621PGAT00709 (Endorsement Reference 02), Contract Endorsement B0621PGAT00709 (Endorsement reference 09), Policy number B0621PGAT00809, Contract Endorsement B0621PGAT00809001 (Endorsement reference 03), Policy number B0621PGAT00710, Policy number B0621PGAT00810, Policy number PLSYSPC12503150 and Policy number PL-SY-SPC- 10-502572.
(e)Golder is not relieved from any obligation to make disclosure in relation to category 22 (h).
(f)In respect of category 5(a) Coffey is relieved from any obligation to make disclosure in relation to this category.
(g)In respect of category 5(k) is that the date range that should apply to documents concerning landscaping defects is 1 June 2018 to 1 June 2020.
(h)Category 22g should be deleted from the Document Plan.
(i)In relation to custodians Messrs Peter McMorrow, Peter Brecht, David Jurd and Laurie Voyer are added to the list of LAJV custodians.
(j)Category 1.4A should be deleted from the Document Plan.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATIONS – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS –
GENERALLY – where an order of the Supreme Court was for disclosure in the proceeding to occur by way of a Document Plan to be agreed or otherwise resolved by hearing – where the parties created a Document Plan for disclosure and have reduced the issues in disagreement to a Schedule to be determined by way of hearing – whether the issues in disagreement ought to be including in the Document Plan for disclosureInsurance Contracts Act 1984 (Cth), s 40
Uniform Civil Procedure Rules 1999 (Qld), r 196, r 202, r 211, r 224, r 242
Crowe v Wheeler & Reynolds [1986] 2 Qd R 84
NRNQ (a limited partnership) v MEQ Nickel Pty Ltd [1991] 2 Qd R 592
Trusified Pty Ltd v Forrestbridge Pty Ltd [2011] QSC 242COUNSEL: P L O’Shea KC with S J Webster for the plaintiff
G D Beacham KC with J Mitchenson for the defendants
H Clift for the first third party/third fourth party B J Kabel for the second third party
F Lubett for the third third party/fourth fourth party
C Jennings KC with H Lilley for the fourth third party/fifth fourth party and the fifth third party/sixth fourth party
R M De Luchi for the sixth third party
J J Baartz for the eighth third party/first fourth party
SOLICITORS:
Allens for the plaintiff MinterEllison for the defendants
Holding Redlich for the first third party/third fourth party CDI Lawyers for the second third party
DLA Piper for the third third party/fourth fourth party Clyde & Co for the fourth third party/fifth fourth party and the fifth third party/sixth fourth partyPinsent Masons for the sixth third party
Johnson Winter Slattery for the eighth third party/first fourth party
Seventh third party excused from appearance
An interlocutory hearing involving disclosure issues
This proceeding involves disputes arising out of a major construction project involving the duplication of the then existing Gateway Bridge, together with the
upgrade of approximately 25 kilometres of existing motorway (“the Project”). On or about 26 September 2006, pursuant to a deed (“the Project Deed”), the plaintiff (QML) engaged the first and second defendants (LAJV) to design, construct and maintain the Project.
The design and construction phase commenced in 2006 and finished in July 2011. The maintenance phase of the Project continued until 15 August 2020. As would be expected with a major construction project spanning some 15 years, some of the parties to the litigation retain databases of documents relating to the Project encompassing millions of documents.
QML started the proceeding in August 2019. QML’s claims total $531, 594. 357.1 The most recent version of the statement of claim is the third further amended statement of claim (“the statement of claim”). The defendants have filed a defence. LAJV has filed a counterclaim against QML. QML has filed a reply and answer. LAJV has commenced various third party claims against a number of subcontractors and consultants. Some of the third parties have filed fourth party claims against other subcontractors and consultants.
The proceeding is being managed on the Supervised Case List and has reached the stage of disclosure. On 23 August 2022, Brown J made a direction that any disclosure by a party be made pursuant to a Document Plan to be agreed or otherwise resolved after a hearing. The parties have since worked on drafts of the Document Plan and conferences have reduced the areas of disagreement.
This hearing was listed to enable the court to make rulings to resolve the remaining disagreements. The hearing occurred in a context where no party sought to strike out any part of another party’s pleading. Some parts of the pleadings to which I was taken appeared to be amenable to challenge and, relevantly, lacked proper particulars. These aspects create their own difficulties for disclosure as it has long been recognised that proper particulars lead to more efficient disclosure.2
The contemplated method of disclosure
At the conclusion of the hearing, I made an order pursuant to rule 224 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) that the parties be relieved of the duty of disclosure except to the extent set out in the Document Plan to be ordered by this Court. A Document Plan is meant to facilitate the just and expeditious resolution of the real issues in a proceeding at a minimum of expense.3 It should be appropriate to the circumstances of a specific case4 and should have, as its objective, the practical and cost-effective retrieval, review, exchange and use of documents according to a plan that satisfies the principle of proportionality.5 That principle requires the parties to ensure that the steps in the plan are proportionate having regard to the nature and complexity of the proceedings, the amount at stake, the real issues in dispute, the stage the proceedings have reached, the volume of potentially relevant documents, the ease with which documents may be retrieved and reviewed, the time and costs associated
Affidavit of Andrew John Orford [12].
NRNQ (a limited partnership) v MEQ Nickel Pty Ltd [1991] 2 Qd R 592 at 595.
Practice Direction 11 of 2012 [4.4].
Ibid [4.2]; Practice Direction 18 of 2018 [8].
Practice Direction 11 of 2012 [4.4].
with proposed steps and the likely outcome or benefits to be derived from taking the proposed steps.6
During the course of the hearing, by consent, the parties tendered:
(a)a draft Document Plan (excluding Schedule 1)7 (“the Document Plan”);
(b)a draft Schedule 1 to the Document Plan (“Schedule 1”);8and
(c)a Schedule of Disagreement (“the Schedule of Disagreement”).9
Some features of the Document Plan are worth noting:
(a)Consistent with this Court’s practice directions, the underlying philosophy of the Document Plan is to “facilitate efficient and proportionate disclosure in the proceeding”.10
(b)The Document Plan commends a proportionate and efficient approach to management and disclosure of documents.11
(c)The parties will be required to perform searches for categories of documents between certain dates in relation to certain defect categories using defined search strings.12
(d)The searches are to extend over email folders belonging to particular individuals who worked on the Project, who are described as custodians.
(e)The parties have agreed to a mechanism by which they can make further requests for additional disclosure of documents after completion of the category based disclosure.13
(f)The terms of paragraphs 4.7 and 4.8 of the Document Plan provide as follows: “4.7 The parties agree that a party may reasonably request
additional disclosure of Critical Documents at any time
before a Request for Trial Date is filed (or trial dates are set by the Court), by submitting to any other party in writing, a request to produce additional documents in accordance with this Document Plan (request for additional documents).
4.8The Critical Documents:
(a) are documents that are in the possession and control of another party;
(b) are documents that are directly relevant to an allegation in issue in the Proceeding (or Third Party proceeding or Fourth Party proceeding, as the case
Practice Direction 11 of 2012 [7]; Practice Direction 18 of 2018 [16].
Exhibit 1.
Initial version Exhibit 2; further amended version Exhibit 7.
Initial version Exhibit 3; further amended version Exhibit 6.
Exhibit 1 [14].
Exhibit 1, [5.1(a)] and [5.1(b)].
There has been a large measure of agreement about the categories and search strings.
Exhibit 1 [4.7] to [4.12].
may be for each party to the Proceeding) and are likely to be tendered at trial;
(c) are documents that have not already been disclosed by a party;
(d) include any documents that may fall outside the scope of the categories of disclosure, date ranges or keyword searches identified in Schedule 1 to the Document Plan;
(e) include any documents that may fall outside the scope of the custodians identified in Schedule 6 of the Document Plan; or
(f) include any documents that either support or are adverse to a party’s case.”
(g)the Document Plan14 contemplates the use of technology assisted review (“TAR”).
The remaining issues in dispute and their resolution
The Insurance Issues
These disputes arise out of categories 18 and 19 of the Document Plan and a separate unnumbered category referred to as “Definitions”. It is convenient to refer to these disputes collectively as the Insurance Issues.
Clause 21 of the Project Deed is concerned with limitations of liability. Clauses 21.3,
21.4 and 21.5 limit LAJV’s liability in respect of consequential loss, design and construct activities and maintenance activities. However, clause 21.6 provides that “Nothing in clauses 21.3, 21.4 and 21.5 will affect or reduce any liability of [LAJV] that is an Exempt Liability and such liability shall not be taken into account in determining if the relevant limitation has been reached or satisfied.”
The Project Deed contains the following definition of “Exempt Liability”: “Exempt liability means any one of more of the following:
(a)liability of [LAJV] to the extent that:
(i)such liability is recoverable under a policy of insurance effected pursuant to [the] Project Deed, subject to such liability being paid in accordance with that policy of insurance; or
(ii)such liability would have been recoverable under a policy of insurance effected pursuant to [the] Project Deed if [LAJV] had:
(A) promptly claimed and diligently pursued such claim, under that policy of insurance; and
Exhibit 1 [6.2(e)].
(B) complied with the terms and conditions of that policy of insurance and its Obligations under [the] Project Deed in respect of that policy of insurance.”
The reply alleges that LAJV’s liabilities to QML in the proceeding, or alternatively some of those liabilities, fall within the meaning of “Exempt Liability”.15 This conclusionary plea is made in the premises of earlier allegations in the reply. To understand the disputed issues, it is necessary to set out some of the detail of those preceding allegations as follows:
(a)The Project Deed required LAJV to effect and maintain professional indemnity insurance with a limit of $40 million under annual policies from the date of the Project Deed to 15 August 2026;16
(b)The Project Deed required LAJV to ensure that, in respect of each required policy of insurance, it complied with the terms of, and did nothing to prejudice, the insurance and gave information to the insurer about all matters and things of which it was aware, the non-disclosure of which, might prejudice any such policy, or the payment of insurance benefits;17
(c)LAJV in fact took out relevant policies of professional indemnity insurance which are defined by the reply as “the Placed Policies”;18
(d)In breach of the Project Deed, LAJV did not effect and maintain professional indemnity insurance for any period after 26 September 2017;19
(e)Had LAJV not breached the Project Deed, it would have effected and maintained policies of professional indemnity insurance with a limit of $40 million dollars up until 15 August 2026, which are defined by the reply as “the Required Annual Policies”;20
(f)Section 40 of the Insurance Contracts Act 1984 (Cth) (“the Insurance Contracts Act”) applied to the Placed Policies and would have applied to the Required Annual Policies;21
(g)In respect of each of the Placed Policies, pursuant to s 40(3) of the Insurance Contracts Act, LAJV was entitled to give notice in writing to the insurer during the period of insurance of facts that might give rise to a claim against LAJV and, if such notice was given during that period and as soon as was reasonably practicable after LAJV became aware of those facts, the insurer could not deny coverage for the claim by reason only that the claim was made after the expiration of the period of insurance;
(h)In respect of the Required Annual Policies, had they been put in place, pursuant to s 40(3) of the Insurance Contracts Act, LAJV would have been entitled to give notice in writing to the insurer during the period of insurance of facts that might give rise to a claim against LAJV and, if such notice had been given
Reply [854(a)].
Ibid [829], [830] and [835].
Ibid [837].
Ibid [838].
Ibid [839].
Ibid [840].
Ibid [841].
during that period and as soon as was reasonably practicable after LAJV became aware of those facts, the insurer could not have denied coverage for the claim by reason only that the claim was made after the expiration of the period of insurance;
(i)In respect of each of the Placed Policies, LAJV was required to give to the insurer written notice of facts that might give rise to a claim against it as soon as was reasonably practicable after it became aware of those facts;
(j)In respect of the Required Annual Policies, had they been put in place, LAJV would have been required to give to the insurer written notice of facts that might give rise to a claim against it as soon as was reasonably practicable after LAJV became aware of those facts;22
(k)For the purpose of the definition of Exempt Liability, in respect of the Placed Policies, the actions of promptly claiming under a policy and diligently pursuing the claim, required LAJV to give to the insurer written notice of facts that might give rise to a claim against LAJV as soon as was reasonably practicable after LAJV became aware of those facts;23
(l)For the purpose of the definition of Exempt Liability, in respect of the Required Annual Policies, had they been put in place, the actions of promptly claiming under a policy and diligently pursuing the claim, would have required LAJV to give to the insurer written notice of facts that might give rise to a claim against LAJV as soon as was reasonably practicable after LAJV became aware of those facts;24
(m)During the policy period of one or more of the Placed Policies, or further and alternatively one or more of the Required Annual Policies had they been in place, LAJV was aware of facts which might give rise to the claims made by QML against LAJV in the proceeding;25
(n)LAJV gave relevant notices under the Placed Policies in respect of QML’s claims;26
(o)LAJV is now entitled to coverage under one or more of the Placed Policies in respect of the liabilities claimed by QML in the proceeding;27
(p)Further and alternatively, if LAJV did not give written notice under one or more of the Placed Policies but had done so as soon as possible after becoming aware of facts which might give rise to the claims made by QML against LAJV in the proceeding, it would have been entitled to coverage under one or more of those policies in respect of the liabilities claimed by QML;28
(q)LAJV would have been entitled to coverage under one or more of the Placed Policies in respect of the liabilities claimed by QML in the proceeding if it had promptly claimed and diligently pursued its claim under the policy and
Ibid [844].
Ibid [845].
Ibid [845].
Ibid [846].
Ibid [847].
Ibid [848].
Ibid [849].
complied with the terms and conditions of the policy and its obligations under the Project Deed in respect of that policy;29
(r)Further and alternatively, if LAJV had effected and maintained the Required Annual Policies and given written notice to the insurer or insurers under one or more of those policies, it would have been entitled to coverage under one or more of those policies in respect of the liabilities claimed by QML in the proceeding;30
(s)LAJV would have been entitled to coverage under one or more of the Required Annual Policies in respect of the liabilities claimed by QML in the proceeding if it had promptly claimed and diligently pursued its claim under the policy and complied with the terms and conditions of the policy and its obligations under the Project Deed in respect of that policy.31
The first of the insurance issues concerns category 18(a)(i) “Insurance Claims and Notifications – Category Description”.
LAJV contends that the category should be limited to “Any documents recording the taking out, renewal, making of notifications, notices or claims in respect of an LAJV Insurance Policy and acceptance, rejection or payment of such claims in relation to the defects listed in the Statement of Claim”. LAJV had initially pressed for the category to be limited to the settlement defects listed in the Statement of Claim.32
LAJV’s essential position is that there are only three categories of relevant documents namely, insurance policies that comply with LAJV’s insurance obligation, the notices given to the insurers under those policies in respect of any of the plaintiff’s claims and the insurer’s responses.33 LAJV submits that no other documents are directly relevant to a pleaded issue.34
QML’s written submissions contend that category 18(a)(i) encompasses the following types of directly relevant documents:
“Any documents:
(a)recording an Insurance Policy taken out by LAJV (or any other party on its behalf), the taking out or renewal of any Insurance Policy by LAJV or any consideration by LAJV (or any other party on its behalf) of the taking out or renewal of any Insurance Policy, or the making of notifications, notices or claims by LAJV (or any other party on its behalf) or any consideration by LAJV of the making of notifications, notice or claims under any Insurance Policy to an insurer, insurance broker or insurance manager;
(b)recording any communications received in response from any insurer, insurance broker or manager in relation to any
Ibid [850].
Ibid [851].
Ibid [853].
LAJV, by its counsel, accepted in oral submissions that the word “settlement” could be deleted: T 1- 24.44.
T 1-22.18-.30.
Defendants’ Written Submissions [68] and [69].
notifications, claims or indemnification for claims under any Insurance Policy;
(c)recording any communications with, or meetings between LAJV and legal and insurance managers or personal in respect of remedial works relating to the impacts of post-construction settlement, including the costs of any remedial works, in relation to the defects listed in column 5 in the terms pleaded in the Statement of Claim.”
QML submitted that its broader disclosure was justified as being directly relevant to pleaded issues concerning the prompt and diligent pursuit of claims. As to the first aspect, ultimately, it was substantively accepted by LAJV that, as a matter of relevance, whether a claim was promptly made could be proved or disproved by documents which revealed LAJV’s state of awareness and subjective understanding about defects. Although LAJV’s written submissions rested upon an argument solely directed to relevance, in oral submissions, its counsel called in aid category 10 of the Document Plan (Defects Identification) to support a submission that, even if category 18(a)(i) contemplated more extensive, directly relevant documents concerning LAJV’s awareness of defects, given the existence of category 10, proportionality considerations warranted no further documents being disclosed under category 18(a)(i) other than the three types of documents identified by LAJV. LAJV’s counsel candidly observed that this proportionality submission was not able to be further developed by reference to the evidence. 35
As to the second aspect, QML submitted that documents which evidence the consideration LAJV gave to the making or notification of claims would be probative of whether it diligently pursued claims or whether claims might have been diligently pursued.36 In response, LAJV submitted that the issue of diligent pursuit was not a factual inquiry but rather an assumption to be made in relation to a hypothetical claim, in circumstances where no claim had in fact been made.37
My reasoning in relation to category 18(a)(i) may be set out as follows. The definition of Exempt Liability contemplates, inter alia, liability that would have been recoverable under a policy of insurance effected pursuant to the Project Deed if LAJV had promptly and diligently pursued a claim. Whether a claim was or could have been promptly made does not appear to me to be an abstract question but, rather, a question which falls to be considered by reference to the facts and circumstances known to LAJV. It may be that documents relevant to knowledge and understanding will also be disclosed under category 10 but I am not prepared to find that the disclosure of documents relating to LAJV’s consideration of the making and notification of claims under this present category will be disproportionate, particularly in the absence of any specific evidence on the point. Further, in relation to the diligent pursuit of claims, at least one relevant scenario contemplated by the definition of Exempt Liability is an existing policy and a claim made but not paid. Whether such a claim was diligently pursued will be a question of fact which is not hypothetical and which falls to be assessed by reference to the manner in which the claim was considered, prepared and later conducted or abandoned by LAJV. To the extent that the reply places into issue
T 1-27.20-.30.
T 1-17.40 – 1-18.10.
T 1-23.05-20.
the diligent pursuit of claims, I consider that it places into issue the circumstances and manner in which claims were pursued and not pursued.
On my review of the pleadings, I do not consider that there is an issue in dispute as to the reasons why any policy was not renewed. To the extent that LAJV sought disclosure of documents evidencing the consideration given by LAJV to the renewal of policies, I do not consider that those documents are directly relevant.
I should also deal with the position of the fourth third party and the fifth third party who formed a design joint venture and are referred to collectively as “DJV”. At the time of the hearing, DJV had very recently filed an amended defence to the third party statement of claim and a counterclaim against LAJV “relating to LAJV’s failure to maintain insurances pursuant to Schedule 43 to the Project Deed”.38 DJV’s new pleading had been filed some two working days before the hearing. At the time of the hearing, unsurprisingly, LAJV had not had an opportunity to consider and plead to the new pleading. DJV sought to rely upon its new pleading to extend the definition of “Insurance Claims and Notifications” beyond defects listed in the Statement of Claim and as a basis for submitting that documents evidencing why policies were not renewed were directly relevant. Given that LAJV has not yet had an opportunity to consider and plead to DJV’s new pleading, I am not prepared to make any rulings or directions based on DJV’s new pleading. If disclosure issues do arise because of DJV’s new pleading, they will crystallise after LAJV has pleaded to the new pleading and the parties have had an opportunity to confer about the consequent issues in dispute for disclosure. Any disclosure issues which do so arise and which cannot be resolved, should be brought back before the Court at a later stage for decision.
Having outlined my reasoning, my ruling in respect of category 18(a)(i) is that the category should encompass the following types of directly relevant documents:
“Any documents:
(a)recording any LAJV Insurance Policy, the taking out or renewal of any LAJV Insurance Policy or the making of notifications, notices or claims by LAJV (or any other party on its behalf) or any consideration by LAJV of the making of notifications, notices or claims in relation to the defects listed in the Statement of Claim under any LAJV Insurance Policy to an insurer, insurance broker or insurance manager;
(b)recording any communications received in response from any insurer, insurance broker or insurance manager in relation to any notifications, claims or indemnification for claims in relation to the defects listed in the Statement of Claim under any LAJV Insurance Policy;
(c)recording any communications with, or meetings between LAJV and legal and insurance managers or personnel in respect of remedial works in relation to the defects listed in the Statement of Claim.”
DJV position as identified in Summary of Disagreement Column for category 18(a)(i) as contained in Exhibit 6.
The second of the insurance issues concerns category 18(a)(ii) Insurance Claims and Notifications - Parties Relieved from Disclosure. This issue concerns not so much the category but whether the third defendant (“CIMIC”) and the fourth defendant (“Lendlease”) should be relieved from the obligation to make disclosure in respect of this category. QML submits that CIMIC and Lendlease should give disclosure in respect of this category and relies upon the particulars to its pleaded allegation that LAJV did not effect and maintain professional indemnity insurance for any period after 26 September 2017. Those particulars reference letters from LAJV’s solicitors dated 3 August 2021 and 12 August 2021 which confirm that LAJV had not maintained its professional insurance policy after 26 September 2017. In passages which are not incorporated into the particulars, the letters also state to the effect that subsidiaries of CIMIC and Lendlease had maintained insurance which substantially satisfied the requirements of the Project Deed.
The defendants submit that CIMIC and Lendlease should be relieved from the duty of disclosure in respect of this category and rely upon the definition of “Exempt Liability” which contemplates liability recoverable under “a policy of insurance effected pursuant to this Project Deed”. QML and LAJV were parties to the Project Deed and only LAJV had a relevant obligation to effect insurance under the Project Deed.
I accept the defendants’ submissions. CIMIC and Lendlease should be relieved from the duty of disclosure in respect of this category because any insurance policy effected by them would not properly be described as “a policy of insurance effected pursuant to [the] Project Deed” within the meaning of that expression as contained in the definition of Exempt Liability. Further, as I read the relevant paragraph of the reply,39 the material allegation made by QML is that LAJV did not effect and maintain professional indemnity insurance for any period after 26 September 2017. There has been no rejoinder and that plea of itself does not place into issue whether CIMIC and/or Lendlease effected or maintained policies of insurance for any period after 26 September 2017. My ruling in respect of category 18(a)(ii) is that CIMIC and Lendlease should be relieved from the duty of disclosure in respect of that category.
The third of the insurance issues concerns category 19(a) Maintenance of Insurance Policies. QML seeks “any documents recording any consideration of or any decision by LAJV, CIMIC, [Lendlease] not to hold, maintain or renew any LAJV Insurance Policy”. QML submits that the maintenance of, or failure to maintain policies is an issue raised by the reply.40 I observe that whilst the reply alleges that LAJV did not effect and maintain relevant insurance after 26 September 2017, LAJV’s decision making in relation to that alleged failure is not in issue. That is, whether relevant insurance policies were in fact held, maintained or renewed is in issue but the reasoning for any alleged failure to hold, maintain or renew is not in issue. I accept LAJV’s submissions in this regard.41 My ruling in respect of category 19(a) is that the category should be amended and limited to “any documents recording any decision by LAJV not to hold, maintain or renew any LAJV Insurance Policy”.
It is convenient at this point to address the Definitions Category which arises in the context of the Insurance Issues. There is broad agreement between LAJV and QML
Reply [839].
Ibid.
T 1-30 11 1-10 -15.
as to the definition of the term “LAJV Insurance Policy”. That definition relevantly refers to “any policy of insurance required to be held by LAJV in accordance with Schedule 43 of the Project Deed …”. I would amend those words so that they relevantly read “any policy of insurance required to be effected and maintained by LAJV in accordance with Schedule 43 of the Project Deed …”.
I should also note that DJV made a submission that the definition of LAJV Insurance Policy should be amended to reflect an allegation made in DJV’s new pleading. As I have already indicated, given that LAJV has not yet had an opportunity to consider and plead to DJV’s new pleading, I am not prepared to make any rulings or directions on the basis of DJV’s new pleading.
The third third party (“Coffey”) is a subcontractor of LAJV. LAJV engaged Coffey pursuant to a Services Contract dated 17 November 2008 (“the Services Contract”). Coffey proposed an amendment to the definition of LAJV Insurance Policy which sought to incorporate the words “project wide professional indemnity insurance taken out by LAJV for the periods 1 January 2006 to date”. Coffey sought to incorporate those words into the definition because of certain allegations it has made in its amended defence and counterclaim (“Coffey’s defence”) which may be set out as follows:
“44. Clause 15.1 of the Services Contract provided that:
(a)the LAJV had obtained a Project-wide policy of professional indemnity insurance that may provide cover for Coffey;
(b)the LAJV undertook to maintain such a policy for
$40 million dollars per event and $40 million dollars in the aggregate per period of insurance, with a deductible of $1 million dollars each claim inclusive of costs and expenses until the end of the Maintenance Period (as that term is defined in the Project Deed) plus six years.
…
46.In the event that:
(a)the LAJV has made a claim on any policy of professional indemnity insurance and is entitled to indemnity in respect of the claims against it made by QML concerning the Alleged Settlement Defects; and
(b)Coffey is also entitled to indemnity in respect of the claims made against it by the LAJV concerning the Alleged Settlement Defects; and
(c)the terms of any such policies contain waiver of subrogation clauses; then
(d)if any such insurers indemnify the LAJV, those insurers have no right of subrogation entitling them to bring or maintain an action in the name of the LAJV against Coffey.”
As will be apparent, this part of Coffey’s pleading is entirely speculative. Paragraph 46 does not plead material facts but rather pleads a series of speculative propositions. LAJV has replied to paragraph 46 by not admitting the allegations for the reasons that “the allegations are vague, ambiguous and so lacking in particularity that they are liable to be struck out”.42 From a pleading perspective, the speculative and unparticularised allegations made by Coffey are, in my view, arguably embarrassing. Having regard to the principle of proportionality and what can be discerned as the real issues in dispute, I do not consider it appropriate to amend the definition of LAJV Insurance Policy to take account of this aspect of Coffey’s pleading.
My ruling in respect of the Definition category is that “LAJV Insurance Policy” should refer to any Policy of Insurance required to be effected and maintained by LAJV in accordance with Schedule 43 of the Project Deed including Policy number B0621PABI00906, Policy number B0621PABI01006, Policy number B0621PGAT00707, Policy number B0621PGAT00708, Policy number B0621PGAT00808, Policy number B0621PGAT00709, Contract Endorsement B0621PGAT00709 (Endorsement Reference 02), Contract Endorsement B0621PGAT00709 (Endorsement reference 09), Policy number B0621PGAT00809, Contract Endorsement B0621PGAT00809001 (Endorsement reference 03), Policy number B0621PGAT00710, Policy number B0621PGAT00810, Policy number PLSYSPC12503150 and Policy number PL-SY-SPC-10-502572.
The fourth of the insurance issues concerns category 18(a)(iii) Insurance Claims and Notifications-Key Search Terms. This category is concerned with the proper composition of search strings. The dispute in relation to the search strings, as revealed by exhibit 3, arose in an initial context where LAJV had been maintaining that the relevant defects were settlement defects as distinct from defects identified in the statement of claim. Given that LAJV abandoned that position in oral argument, I consider that it is appropriate for the parties to further discuss the proper composition of the search strings the subject of this category with the benefit of LAJV’s concession and my reasons in relation to the other insurance issues. Accordingly, I consider it appropriate to defer any ruling in relation to this category to a later time, if the parties are unable to resolve their dispute.
Category 22(h)
One of LAJV subcontractors was the eighth third party (“Golder”). The term “Settlement Defects” is defined by the Document Plan to refer to “the defective embankment or pavement settlement as particularised between paragraphs 144-168 of [the statement of claim]”. The Settlement Defects claim was described by QML’s counsel as probably the major defect alleged in the proceeding.43
Category 22(h) describes documents in the following terms:
“All reports, including any reports by engineering consultants, in relation to the Settlement Defects, including those prepared by GO Inventions Consulting Services and other consultants engaged by parties to the proceeding.”
LAJV reply [21(a)] and [21 (b)].
T 1-51.44 - 1-52.01.
Golder seeks to be relieved from any obligation to make disclosure in relation to this category. Golder submits that the category is a fishing expedition and noted that the category contained identical key words or search strings to those contained in category 22(a).
I am not persuaded that category 22(h) is a fishing expedition or concerns documents that are unlikely to be directly relevant. The Settlement Defects are pleaded defects and 22(h) essentially seeks the disclosure of reports prepared by consultants engaged by parties to the proceeding in relation to those pleaded defects. Golder is one such consultant. The fact that the key words or search strings are identical for 22(h) and 22(a) does not necessarily mean that there will be duplication or wasted costs because the search strings may well pick up documents that fall into one or other of the two categories.
My ruling in relation to category 22(h) is that Golder is not relieved from disclosure in respect of this category.
Category 5(a)
This category is concerned with maintenance activities or works in relation to the Settlement Defects claim. There are two relevant claims made by QML as against LAJV. First, QML alleges that LAJV failed to properly design and/or construct embankments and pavements in locations which have suffered excessive settlement.44 Second, QML makes a claim against LAJV for defective bridge pavement works. In the second further amended statement of claim (“the Coffey third party statement of claim”), LAJV has made certain allegations against Coffey which concern the settlement defects and the bridge pavement defects. However, the claims advanced in the Coffey third party statement of claim are limited to allegations of defective design and do not extend to allegations about construction and maintenance.45 In these circumstances, Coffey seeks to be relieved from any disclosure obligation in respect of category 5(a) which is concerned with maintenance aspects of the claim in respect of Settlement Defects. QML resisted Coffey being relieved from disclosure in respect of this category.
The initial part of QML’s argument was directed towards a point of principle concerning the usual disclosure obligations of a third party under the UCPR. To the extent that QML articulated this point of principle, it was supported by submissions made on behalf of LAJV.46 The question of principle has some general relevance to the subject dispute notwithstanding that the essential contest between Coffey and QML occurred in the context of disclosure being made pursuant to a Document Plan with an accompanying order that the parties otherwise be relieved of any obligation to make disclosure. QML described its interpretation of the rules as being “a key factor in the appropriateness of what we seek”.47
Statement of Claim [148].
This proposition was accepted as correct by LAJV’s counsel: T 2-15. 41.
The Defendants’ written submissions [92].
T 2-19.37.
In terms of the usual disclosure obligations of a third party under the UCPR, QML made reference to rules 202 and 211 which provide as follows:
“202 Disclosure
(1)A duty of disclosure arises between a third party and the defendant who included the third party only if the third party files a defence.
(2)A duty of disclosure arises between a third party and a plaintiff only if the third party denies the plaintiff’s allegations against the defendant or alleges another matter showing the plaintiff’s claim against the defendant is not maintainable.
Note—
See rule 211 (Duty of disclosure).
(3)However, a duty of disclosure may arise between a third party and another party if the court so orders.
…
211 Duty of disclosure
(1)A party to a proceeding has a duty to disclose to each other party each document—
(a) in the possession or under the control of the first party; and
(b) directly relevant to an allegation in issue in the pleadings; and
(c) if there are no pleadings—directly relevant to a matter in issue in the proceeding.
Note—
Under the Acts Interpretation Act 1954, schedule 1—
document includes—
(a) any paper or other material on which there is writing; and
(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
(c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).
(2)The duty of disclosure continues until the proceeding is decided.
(3)An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of.”
QML submitted that rule 202 was concerned with the existence, but not the content, of the duty of disclosure, the content being explained by rule 211. QML candidly argued the point from the position that, in the present case, rule 202(1) was engaged and, implicitly, rule 202(2) was not engaged.48 QML’s argument was to the effect that by reason of rule 202(1) there was a duty of disclosure as between LAJV and Coffey and, in terms of the content of that duty, the answer was to be found in the language of rule 211. Relevantly, where r 211(b) referred to “Documents directly relevant to an allegation in issue in the pleadings”, the expression “the pleadings” referred to the pleadings in the proceeding generally. Hence, according to the argument, Coffey was required to provide disclosure to LAJV “of any documents it has which are directly relevant to any allegations in issue in any of the pleadings in the proceeding”.49 QML submitted that Coffey not being relieved of disclosure in relation to this category was consistent with the position under the UCPR.
In support of its submission, QML relied upon Trusified Pty Ltd v Forrestbridge Pty Ltd,50 where Fryberg J had observed that the expression “an allegation in issue in the pleadings”, as it appears in r 211, does not limit disclosure to “an allegation in issue between the disclosing party and another party”. In what appears to have been an ex tempore decision, Fryberg J relevantly reasoned as follows:
“The provisions of rule 211 require a party to a proceeding to disclosure by each other party of each document in its possession or under its control directly relevant to, ‘an allegation in issue in the pleadings’. It does not limit that to an allegation in issue between the disclosing party and another party. I see no reason to accept the submission that it should be construed as so limited. No authority in support of that submission was advanced to me and in principle it seems an unlikely construction for two reasons: first, because the natural meaning of the words is otherwise and, second, because I see no policy reason for making a party who seek such disclosure go through the process of third party disclosure against someone who is already a party to the proceedings.”
It is not apparent that Fryberg J was referred to rules 196, 202 and 242. Rules 196 and 242, read together, would appear to cast doubt upon the validity of the second of the reasons identified by his Honour. In this respect, rule 196 provides that, upon being served with a third party notice, “the third party becomes a party to the proceeding”. Rule 242(1) provides that non-party disclosure is only available against “a person who is not a party to the proceeding”. Further, it appears to me that the expression “the pleadings” as it appears in rule 211(1)(b) must derive its meaning in the context of whatever duty of disclosure has arisen under rule 202. That is, if in a given case, by reason of rule 202, a duty of disclosure has arisen between the third party and the defendant but not the third party and the plaintiff, it is difficult to see why, for the purpose of giving content to the duty as between the third party and the defendant, “the pleadings” in rule 211(1)(b) should include the pleadings as between the plaintiff and the defendant.
T 2-11.20-.40.
T 2-13 .15 to.20.
[2011] QSC 242.
It is relevant to note that when third party proceedings are commenced, it is no longer the case that the third party has all the rights of a defendant to defend the claim made by the plaintiff against the defendant.51 Rather, the extent to which a third party may appear at a trial and be bound by a judgment between the plaintiff and the defendant are matters for directions and orders by the Court.52 The rules are also very specific about when and why duties of disclosure will arise as between a third party and another party. No duty of disclosure arises as between a third party and a plaintiff unless, in terms of rule 202(2), the third party denies the plaintiff’s allegations against the defendant or alleges another matter showing that the plaintiff’s claim against the defendant is not maintainable, or, in terms of rule 202(3), the court orders disclosure. If no duty of disclosure arises as between a plaintiff and a third party, that will essentially be because the third party’s pleading has not denied the plaintiff’s claim against the defendant. In that event, there will have been no issue in dispute as between the plaintiff and the third party in respect of which there should be disclosure. In circumstances where the only duty of disclosure owed by a third party is to a defendant, the reference to “the pleadings” in rule 211 should be construed as a reference to the pleadings as between the defendant and the third party because only those pleadings will have given rise to an allegation in issue in respect of which there is a duty to disclose documents. As regards this category, in the circumstances of the present case which engage only rule 202(1), I do not consider that the UCPR would ordinarily require Coffey to make disclosure by reference to any allegations in issue in any of the pleadings in the proceeding.
QML submits that Coffey should, in any event, make disclosure in respect of this category because:
(a)The category extends to “Maintenance Activities”, a term defined by the Project Deed to include work, things or tasks required to be undertaken by LAJV including the rectification of defects.53
(b)To the extent that the category makes reference to “Maintenance Activities” it could be expected to include technical reports relating to or concerning the rectification of design defects.
(c)The Services Contract included a clause54 which provided “… to the extent that any act, default, omission or breach of the Services Contract causes LAJV to default under a contractual arrangement between LAJV and another person(s) relevant to the Project, [Coffey] shall do all things necessary to assist LAJV to remedy that default”.
(d)The existence of that clause made it objectively likely that Coffey would have produced documents which answer the category description and Coffey had not provided any evidence that the documents did not exist or would be burdensome to disclose.
Coffey’s submissions emphasised that it was already making disclosure of documents in relation to category 10, Defect Identification. This category, by reference to the document description for the category was likely to capture a number of reports and
Crowe v Wheeler & Reynolds [1986] 2 Qd R 84 at 87.
UCPR, rules 203 and 204.
Statement of Claim, page 8.
Clause 25.1 of the Services Contract.
documents prepared by Coffey including monitoring reports, investigations and reports in respect of defects, geotechnical field investigation reports, geotechnical laboratory data reports and internal Coffey documents, memoranda, file notes and communications. QML submitted that the search strings for category 10 were different to the search strings for category 5(a) and would produce different documents.
In my consideration, by reason of category 10, Coffey will already be disclosing documents in relation to defects including their identification and rectification. Having regard to the position under the UCPR in terms of rule 202 and the principle of proportionality, and in particular that the real issues raised against Coffey are concerned with design and it will already be making disclosure in relation to category 10, I consider that it is appropriate to relieve Coffey from any obligation to make disclosure in relation to category 5(a).
My ruling in respect of category 5(a) is that Coffey should be relieved from any obligation to make disclosure in relation to this category.
Category 5(k)
This category concerns the date range that should apply to documents concerning landscaping defects. QML initially contended for a date range of between July 2011 and August 2020.
In response, LAJV focused upon the pleadings which reveal the following allegations made by QML:
(a)The Project included the design, construction and maintenance of landscaping works.55
(b)Provisions of a technical standard applied to the landscaping works.56
(c)The landscaping works in the locations identified in Annexure 9 to the Statement of Claim do not comply with requirements of the Project Deed because of incidences of mulch, weed and plant (“The Defective Landscaping Works”).57
(d)The Defective Landscaping Works were not designed and constructed using best practices and in a good and workmanlike manner, were not maintained in accordance with Maintenance Best Practices and have not been fit for the Purposes at all relevant times up to final handover.58
(e)Maintenance Best Practices required the landscaping works to be maintained so as to meet the standards required by the Project Deed and LAJV to undertake remedial works.
Annexure 9 to the statement of claim identifies the Defective Landscaping Works by reference to a Landscaping Defects Correction Direction dated 2 June 2020 (“the June 2020 Notice”).59 The further and better particulars relevantly state that the areas
Statement of Claim [410].
Ibid [412].
Ibid [413].
Ibid [414].
Exhibit 4.
affected by the Defective Landscaping Works “became not fit for the Purposes when the respective “Plant”, “Mulch” and “Weed” defects identified in Annexure 9 manifested” and “…those times are not known to [QML] except to say after construction and before the filing of the [statement of claim] (the later date being before Final Handover).”60
The June 2020 Notice:
(a)relevantly stated that inspections “identified Defects which are presenting in the landscaping, revegetation and urban design … elements”.61
(b)attached a spreadsheet which set out the defects “which are present in the high profile areas and identifies how LAJV has failed to comply … … in respect to those defects”.62
(c)identified mulch, weed and planting defects.
LAJV’s essential point was to the effect that the identified defects are particularised by reference to the June 2020 Notice which speaks of the defects as existing as at that time. No case is pleaded to the effect that the defects manifested at any earlier time and, to the extent that QML seeks disclosure back to any significantly earlier period, it was fishing for a case.
QML referenced the dates for completion of the separable portions and the maintenance phase for each separable portion under the Project Deed.63 QML’s concern was that there would be no disclosure made of any defect in landscaping works prior to 30 July 2013 because, according to the Project Deed, LAJV’s maintenance obligations ceased at that point in time. QML adjusted its initial position to seek disclosure of documents relating to landscaping defects during the earlier maintenance periods and then for a limited period of time in the lead up to the June 2020 Notice.
I am not persuaded by QML’s submissions and I accept LAJV’s submissions. As the pleadings presently stand, there is no allegation of any landscaping defects existing between 2008 and 2013. Rather, the case as pleaded seems to be premised on defects having become manifest by the time of the June 2020 Notice. The further and better particulars do not assist QML’s submissions. In my consideration, the principle of proportionality is best served by requiring LAJV to give disclosure of documents in relation to this category by reference to a reasonable period prior to the June 2020 Notice. That period in my assessment would be 1 June 2018 to 1 June 2020.
My ruling in relation to category 5(k) is that the date range that should apply to documents concerning landscaping defects is 1 June 2018 to 1 June 2020.
Category 22g
This category is broadly concerned with correspondence passing between LAJV and its consultants concerning the scope of geotechnical works to be carried out in relation
Consolidated Particulars [300].
Exhibit 4, page 1.
Exhibit 4, page 3.
Statement of Claim [140] and [141].
to the Project. It is convenient to deal with the category by reference to the separate positions of DJV and Coffey.
DJV contends that the category should include all correspondence between LAJV and the fifth third party, and all correspondence between LAJV and the fourth third party concerning the scope of geotechnical works to be carried out by DJV in relation to the Project. The date range for the correspondence sought by DJV is 2006 to 2020.
By way of very broad overview, LAJV alleges that:
(a)DJV designed the allegedly defective embankments and pavements;64
(b)DJV was contractually obliged to ensure that the design of the allegedly defective embankments and pavements met certain requirements;65
(c)To the extent the allegedly defective embankments and pavements were not designed to meet those requirements and LAJV is liable to QML, that liability is damage suffered by the LAJV in consequence of DJV’s breaches. 66
DJV essentially defends this case on the basis that the design of the allegedly defective pavements was not part of the services in its brief67 and, in any event, the designs met the relevant requirements.
Counsel for DJV frankly conceded that this category of disclosure related to an issue that did not arise on the pleadings.68 It was submitted that the category was “strictly beyond what’s said in the pleadings” as the pleadings did not suggest that there had been a “blurring between the services between Coffey and the DJV”.69 Counsel for DJV sought to justify the category by reference to an affidavit which exhibited relevant historical correspondence which suggested that there were disputes and differences about who was responsible for what work.70 The problem is that none of this is pleaded. The principle of proportionality requires me to have regard to the real issues in dispute as raised by the pleadings, as well as the volume of documents and the ease with which they may be retrieved and reviewed. Given the concession made by counsel for LAJV, the lengthy date range and open ended nature of the category, I do not consider that the principle of proportionality warrants this category of documents, as advanced by LAJV, being included in the Document Plan.
Coffey pressed for all correspondence between LAJV and Coffey concerning the scope of geotechnical works to be carried out by Coffey in relation to the Project for the more limited period of between 2006 and 2009. Coffey limits the disclosure to that period because that is the period of time during which design work is said to have been performed.
In terms of the pleaded issues involving Coffey, LAJV alleges the Services Contract71 and a number of clauses of the Services Contract, including a reference to Coffey’s
LAJV’s Amended Statement of Claim filed 29 June 2022 [74].
Ibid [75(a)].
Ibid [75] and [76].
T 1-81.35-41.
T 1-82.45.
T 1-81.44 – T 1-82.4.
Affidavit of Steven Lurie filed 2 May 2023.
The Coffey Third Party Statement of Claim [18].
obligations to provide the Services which are defined as the geotechnical services contained in Annexure G. Paragraph 21A alleges that Coffey undertook all of the geotechnical investigations at sites 1 to 8, and also designed the foundation improvement techniques implemented at each of the relevant embankments at sites 1 to 7. As part of Coffey’s defence, Coffey variously alleges that “geotechnical investigations were also carried out by other organisations and previous geotechnical reports were provided by QML as tender information”,72 and DJV also prepared design documentation for sites 1 to 773 and site 8.74
LAJV resists this disclosure because, according to its submission, Coffey has not placed into issue that there was any communication comprised in correspondence which materially concerned or affected the obligations assumed by Coffey under the Services Contract. Essentially, LAJV’s proposition was that there was no pleading that raised communications back and forth between LAJV and Coffey about the scope of work under the Services Contract. I accept this submission. Coffey’s defence proceeds upon the basis of the proper construction of the Services Contract without alleging any communication which affected that construction. Further, Coffey’s defence does not allege or particularise any written communication which affected or limited Coffey’s scope of work in relation to the work areas. On my review of the relevant pleadings, Coffey has not pleaded any communications or exchanges which are alleged to have affected or limited its contractual obligations or the performance of those obligations.
My ruling in relation to category 22g is that the category should be deleted from the Document Plan.
Custodians
The parties have agreed to carry out searches and collect documents from Outlook folders relating to custodians listed in the Document Plan.75 The parties’ agreement to carry out searches and collect documents is subject to the relevant party having within its power, possession and control, Outlook folders relating to those identified custodians.
LAJV has agreed to carry out searches and collect documents from Outlook folders for well over 100 nominated custodians. LAJV resists adding to that list Messrs Peter McMorrow, Peter Brecht, David Jurd and Laurie Voyer. Each of those persons have been identified from an organisational chart as being members of LAJV’s management committee in respect of the Project.76
QML seeks to justify the addition of these persons on the basis that, being members of the management committee, there is an objective likelihood that they would have received relevant communications, not just in relation to issues such as defects, but in relation to higher level issues such as the Insurance Issues. QML emphasised in its submissions that because the Document Plan has agreed relevant search terms and
Coffey defence [21(a)(iv)]
Ibid [21(b)(iii)]
Ibid [21(b)(iv)]
Schedule 6 to the Document Plan.
Affidavit of Nichola Nora O’Leary [83].
word strings, the task of identifying directly relevant documents from inboxes is made significantly more efficient and less burdensome.
In resisting the addition of these persons to the list of custodians, LAJV noted that the addition of these persons would add approximately half a million documents to be processed and searched.77 That estimate proceeds on the basis that each email folder will contain approximately 100 gigabytes of data. The cost of the hosting and maintenance of the data is calculated at approximately $9.50 per gigabyte per month.78 LAJV’s solicitor deposed to LAJV having, during the course of drafting the defence, identified a list of 80 custodians who are likely to hold probative documents.79 No reasons were offered in that affidavit as to why the Outlook folders kept and maintained by Messrs McMorrow, Brecht, Jurd and Voyer, as members of the LAJV management committee, were not considered likely to hold directly relevant documents. I accept QML’s submissions that, from an objective viewpoint, the Outlook folders of the four identified persons would likely contain directly relevant documents and the time and costs involved in adding those persons to the list of custodians is in my consideration proportionate.
My ruling in relation to custodians is that Messrs Peter McMorrow, Peter Brecht, David Jurd and Laurie Voyer be added to the list of LAJV custodians.
Category 1.4A
Finally, in the section of the Document Plan headed Background, the first third party (“Jacobs”) seeks to include the following paragraph:
“1.4AOn 20 December 2022, LAJV significantly expanded the Third Party proceedings against Jacobs by including many additional claims to which Jacobs is still in the process of preparing a defence. The result of that expansion is that Jacobs is still investigating the additional claims as part of preparing its defence and is unable to definitively comment on the majority of keyword searches, date ranges, or categories of documents in Schedule 1 or custodians in Schedule 6 in respect of the additional claims. Regardless of this, Jacobs has used its best endeavours to comment meaningfully on the Document Plan insofar as it relates to the additional claims but Jacobs anticipates that it will need to utilise the process in section 5.2.”
I do not consider it necessary to include this paragraph in the Document Plan. In the event that it becomes necessary for Jacobs to require contested amendments to Schedules 1 or 6, the reasonableness or otherwise of its position will fall to be determined by a consideration of all of the circumstances as they exist at the time the amendments are required. In the event that there then exists any serious question as to the reasonableness of the steps or work undertaken by Jacobs to that point in time, the resolution of such a question would be assisted by affidavit evidence rather than general statements of the kind contemplated by paragraph 1.4A.
This estimate is sourced from the affidavit of Andrew John Orford [26].
Affidavit of Andrew John Orford [21].
Ibid [17].
My ruling in relation to category 1.4A is that the category should be deleted from the Document Plan.
Orders
The orders I make are as follows:
(a)In respect of category 18(a)(i) of the Document Plan, the category should encompass the following types of directly relevant documents:
“Any documents:
(a)recording any LAJV Insurance Policy, the taking out or renewal of any LAJV Insurance Policy or the making of notifications, notices or claims by LAJV (or any other party on its behalf) or any consideration by LAJV of the making of notifications, notices or claims in relation to the defects listed in the Statement of Claim under any LAJV Insurance Policy to an insurer, insurance broker or insurance manager;
(b)recording any communications received in response from any insurer, insurance broker or insurance manager in relation to any notifications, claims or indemnification for claims in relation to the defects listed in the Statement of Claim under any LAJV Insurance Policy;
(c)recording any communications with, or meetings between LAJV and legal and insurance managers or personnel in respect of remedial works in relation to the defects listed in the Statement of Claim.”
(b)In respect of category 18(a)(ii) of the Document Plan, CIMIC and Lendlease are relieved from any obligation to make disclosure in respect of that category
(c)In respect of category 19(a) of the Document Plan, the category should be amended and limited to “any documents recording any decision by LAJV not to hold, maintain or renew any LAJV Insurance Policy”.
(d)In respect of the Definition category of the Document Plan “LAJV Insurance Policy” should refer to any Policy of Insurance required to be effected and maintained by LAJV in accordance with Schedule 43 of the Project Deed including Policy number B0621PABI00906, Policy number B0621PABI01006, Policy number B0621PGAT00707, Policy number B0621PGAT00708, Policy number B0621PGAT00808, Policy number B0621PGAT00709, Contract Endorsement B0621PGAT00709 (Endorsement Reference 02), Contract Endorsement B0621PGAT00709 (Endorsement reference 09), Policy number B0621PGAT00809, Contract Endorsement B0621PGAT00809001 (Endorsement reference 03), Policy number B0621PGAT00710, Policy number B0621PGAT00810, Policy number PLSYSPC12503150 and Policy number PL-SY-SPC-10-502572.
(e)Golder is not relieved from any obligation to make disclosure in relation to category 22 (h).
(f)In respect of category 5(a) Coffey is relieved from any obligation to make disclosure in relation to this category.
(g)In respect of category 5(k) is that the date range that should apply to documents concerning landscaping defects is 1 June 2018 to 1 June 2020.
(h)Category 22g should be deleted from the Document Plan.
(i)In relation to custodians Messrs Peter McMorrow, Peter Brecht, David Jurd and Laurie Voyer are added to the list of LAJV custodians.
(j)Category 1.4A should be deleted from the Document Plan.
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