Wickham Point Development Pty Ltd v The Commonwealth of Australia

[2018] NTSC 7

Wickham Point Development Pty Ltd v Commonwealth of Australia
[2018] NTSC 7

PARTIES:WICKHAM POINT DEVELOPMENT PTY LTD

v

COMMONWEALTH OF AUSTRALIA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:25 of 2017 (21715635)

DELIVERED:  9 February 2018

HEARING DATES:  25 October and 15 November 2017

JUDGMENT OF:  LUPPINO AsJ

CATCHWORDS:

Practice and Procedure – Pleadings – Principles of pleadings – Where strict compliance with technical pleading rules is not required – Court’s discretion to control pleadings.

Practice and Procedure – Pleadings – Statement of Claim – A Statement of Claim should not plead facts in respect of an anticipated defence.

Practice and Procedure – Pleadings – Amending Pleadings – Principles applicable to applications for leave to amend pleadings – Courts generally allow amendments in usual cases – Disallowance of an amendment if the amended pleading is thereby rendered liable to strike out.

Practice and Procedure – Discovery – Redaction of parts of documents – General rule that all of a discovered document must be produced for inspection – Redaction of irrelevant parts may be permitted in appropriate circumstances – Test of the interests of justice determines whether redaction is permissible – Assessment of entitlement to redaction.

Supreme Court Rules, 29.03(5), 36.01(1) and (2), 63.11(7).
Practice Direction 6 of 2009 – Trial Civil Procedure Reforms, paras 3-11.

M Grant, Civil Procedure Northern Territory.
B Cairns, Australian Civil Procedure, (11^th ed, 2016)

McDonnell Shire Council v Miller [2009] NTSC 46.
Dare v Pulham (1982) 148 CLR 658.
BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No 2) [2002] FCA 87.
Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499.
Beach Petroleum NL v Johnson (1991) 105 ALR 456.
Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281.
Fluor Australia Pty Ltd v Sherritt International Corporation & Anor [2002] VSC 203.
United Super Pty Ltd v Randazzo Investments Pty Ltd [2009] NTSC 50.
Hall v Eve (1876) 4 Ch D 341.
Spicers and Detmold Ltd v Australian Automatic Cigarette Paper Co Pty Ltd [1942] VLR 97.
Fortescue Metals Group Ltd v Australian Securities and Investment Commission (2012) 247 CLR 486.
Kernal Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd, Unreported, Federal Court of Australia, French J, 3 September 1991.
Issage v White (2000) 172 ALR 586.
Octagon Inc v Hewitt (No 2) [2011] VSC 373.
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34.

REPRESENTATION:

Counsel:

Plaintiff:Mr Christrup

Defendant:Mr Robinson SC

Solicitors:

Plaintiff:HWL Ebsworth      

Defendant:Clayton Utz

Judgment category classification:    B

Judgment ID Number:  Lup1801

Number of pages:  36

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Wickham Point Development Pty Ltd v Commonwealth of Australia
[2018] NTSC 7

No. 25 of 2017 (21715635)

BETWEEN:

Wickham Point Development Pty Ltd

Plaintiff

AND:

Commonwealth of Australia

Defendant

CORAM:    LUPPINO AsJ

REASONS

(Delivered 9 February 2018)

1. The Plaintiff has applied by summons for leave to further amend its Statement of Claim. By a separate summons the Plaintiff also seeks orders in the nature of discovery.

2. The power of the Court to allow amendment of pleadings, in addition to the Court’s inherent power to do so, derives from Rule 36.01(1) of the Supreme Court Rules (“SCR”) which provides as follows:-

   For the purpose of determining the real question in controversy between the parties to a proceeding or of correcting a defect or error in a proceeding or of avoiding multiplicity of proceedings, the Court may at any stage order that a document in the proceeding be amended or that a party have leave to amend a document in the proceeding.

3. Rule 36.01(1) gives the Court a broad discretionary power to allow amendments to documents and that includes pleadings.[1] Subject to case management requirements and the public interest in finalising litigation promptly and properly utilising the Court’s resources, in general Courts liberally allow amendments to pleadings provided that the application is made in good faith, any prejudice to the other party can be adequately addressed with an order for costs[2] and the amendment is not futile, namely that the amended pleading would not be liable to strike out.[3]

4. At this stage of the proceedings, only the last of those requirements has any application. As to that, in McDonnell Shire Council v Miller,[4] Mildren J described the test as being “…whether or not the amendments are so obviously bad in law that it would be futile to allow an amendment”.

5. It is necessary to set out some of the factual background to put the application for leave to amend, and these reasons, into context. First I make a general comment namely that the level of material facts, particulars and causes of action set out in the current statement of claim, (the First Amended Statement of Claim (“the ASOC1”)), and the numerous instances of alleged breach of repair obligations, sufficiently demonstrates that the proceedings, and the pleadings to date, are complex.

6. The proceedings relate to premises purpose built by the Plaintiff for the Defendant to use as a detention facility for refugees (“the Facility”). Succinctly, the Plaintiff alleges that in the course of negotiations various promises or representations were made and, induced by those representations, the Plaintiff agreed to construct the Facility on a leasehold property. The Defendant agreed to sublease the Facility. Notwithstanding that the sublease entered into was for an initial three year term with two options to renew of one year each, the Plaintiff alleges that the promise made on behalf of the Defendant was that the Defendant would occupy the site for at least 10 years.

7. The sublease commenced on 7 November 2011. Subsequently the initial term was extended until 30 June 2015. At the same time the Defendant exercised the first option to renew but for an agreed reduced period and the Defendant was granted a new option to renew for four years in lieu of the existing options. The period of the first option expired on 30 November 2016.

8. In August 2016 the Defendant gave notice that it did not intend to exercise the four year option and that it would vacate the Facility by 30 November 2016. As at that date, the Defendant had subleased the Facility for a period of approximately five years.

9. The claim is for loss and damage based both in contract and estoppel. Additionally relief is sought for rent during an alleged holding over period. The Plaintiff resumed possession of the site on 5 July 2017 and alleges that the Defendant was holding over until then as it had not removed its property from the Facility until then at least. There is also a very significant claim for damages in respect of a breach of the term of the sublease by the Defendant of its obligation to repair and/or reinstate the premises. That claim has nearly 9,000 separate instances of breach which are set out in a Schedule of 184 pages.

10. The amendments contained in the proposed Second Amended Statement of Claim (“the ASOC2”), at least as initially proposed[5], related solely to the repair claim. The pleading in respect of the repair claim is at paragraph 70 of ASOC2 and this is largely pleaded by reference to the Schedule previously referred to. The Plaintiff has utilised the Schedule with the commendable aim of attempting to simplify the pleading.

11. The Schedule itemises the general location of where the alleged default occurred (such as a specific section of the entire complex), followed by a more specific location within that general location (such as the relevant room number), a description of the relevant item which is alleged to be the subject of the default, brief details of the alleged breach and the applicable clause of the sublease. Where applicable there are also details of the relevant unit numbers or quantities involved.

12. In my view, given the multiplicity of instances of breach in respect of alleged repair obligations, if strict compliance with technical rules of pleadings were to be required, delay and increased costs would result. I am not convinced that the end product would necessarily be conducive to the ongoing management of the matter through to trial.

13. In routine cases involving simple, straightforward or short statements of claim, there is good reason to insist on compliance with pleading rules. In some cases, and I say at the outset that I am satisfied that this is such a case, strict compliance with technical rules of pleadings will not necessarily be the best approach to satisfy the purpose of pleadings. That purpose is to define the issues so that parties know the case to be met. There are numerous authorities for this proposition commencing from Dare v Pulham[6] to more recent cases such as BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No 2)[7] and Queensland v Pioneer Concrete (Qld) Pty Ltd.[8]

14. Courts have a discretionary power to control pleadings.[9] The discretion is often utilised in complex cases to deal flexibly with pleadings which do not strictly comply with the technical pleading rules.

15. In modern times an early instance of this approach is Beach Petroleum NL v Johnson.[10] In that case von Doussa J, albeit when referring specifically to the distinction between material facts and particulars said:-

    A strict distinction between material facts and particulars has tended to become more obscured as the years have gone by. The tendency now is towards narrative pleading as there is a growing concern that pleadings according to traditional rules do not adequately make known to the court and to the parties the nature of the opposing cases in complex matters.… Technical objections raised to pleadings on the ground of alleged want of form will be received with less enthusiasm today than in times past. Nevertheless the pleadings, including particulars stated therein, must be adequate to disclose the case which the opposing party must meet at trial, and to disclose a reasonable cause of action.[11]

16. That approach was considered in the context of broader pleading rules by Mansfield J in BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd & Ors (No 2).[12] His Honour said:-

    The tendency in pleadings in recent years has been to address matters of substance rather than matters of form. Thus, as von Doussa J pointed out in Beach Petroleum NL v Johnson, the strict distinction between material facts and particulars has not been rigidly adhered to, and technical objections raised to pleadings on the ground of alleged want of form are not so enthusiastically received. The Court’s focus has been upon ensuring the case is identified with clarity, so that the opposing party knows the case to be met and the issues for trial are identified. The focus upon case management, to ensure the efficient and fair conduct of proceedings, has also led to the emphasis on technical pleadings rules being diverted to an emphasis upon ensuring that, in substance, the objectives of pleadings…. are fulfilled.[13]

17. The principle and the approach was also considered, with approval, in Queensland v Pioneer Concrete (Qld) Pty Ltd[14] where Drummond J said:-

    While, prima facie, the Court’s rules with respect to pleadings must be complied with, compliance is enforced by the invocation of the Court’s discretion to strike out non-conforming pleadings. Consistently with the comments in Beech Petroleum, judges of this Court have dealt with challenges to the adequacy of pleadings in a more flexible way than would be required by a strict application of those rules. This is an approach that reflects the discretionary nature of the Court’s power to control pleadings and the objective of the Court’s case management system….

    It is, in my opinion, a legitimate and necessary exercise of the controlling discretion the Court has over pleadings to utilise that power to ensure that a party is not required to incur the expense of providing masses of information in its pleadings that can be seen to be unnecessary for the proper disposition of the case, even though the prima facie obligation of a party to plead all material facts necessary to make out its cause of action could be said to require that. This is not to suggest that clarity in pleading is not important. The need to focus on pleadings being used to identify the matters really in issue is particularly pressing in a complex case. But the rules of pleading do not now provide the only means for achieving this. And above all, those rules are not now intended to be an arsenal for litigation by attrition.[15]

18. The application of the principle in the context of complex building disputes specifically was considered, again with approval, by Byrne J in Fluor Australia Pty Ltd v Sherritt International Corporation & Anor[16] where his Honour said:-

    Experience in the Building Cases List shows that extensive battles over particulars at an early stage are often of little value to the parties or to the trial judge. The plaint is often heard from counsel, as in this case, that the pleadings do not disclose the case which their client must address. Very often the party knows very well what the case is. A feature of building cases arising out of major projects is that they are usually commenced after extensive negotiation involving exchanges of position between the parties. Furthermore, in so far as the claims concern technical matters, the litigants are usually well resourced in terms of technical input. Moreover, by the time the case comes for trial, mediation will have been conducted and expert and other witness statements will have been delivered. All of this has the consequence that the particulars provided early in the litigation process often cease to play a very significant role. This is not to say that particulars should be put to one side; …It means only that arguments about their sufficiency must be approached in a practical and pragmatic way.[17]

19. More recently, in Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor,[18] Martin CJ said that the sufficiency of a statement of claim in satisfying the purpose of the pleadings should be viewed in the context of contemporary case management and pre-trial directions. The types of directions he referred to included the exchange of expert reports and the affidavits of lay witnesses. His Honour concluded that case management processes leave little opportunity for surprise such that strict compliance with technical rules is not necessary in appropriate circumstances.

20. In particular his Honour said:-

    In my view, it follows that provided the pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in and derive from a very different case management environment.

    Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the court adopting an approach to pleading disputes to the effect that only where the criticisms of pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.[19]

21. In the Northern Territory, Practice Direction 6 of 2009 – Trial Civil Procedure Reforms is additionally relevant. That Practice Direction provides for pre-action protocols and requires the parties to not only exchange information and essential documents in respect of their cases but also to engage in some form of alternative dispute resolution and all before the issue of proceedings.[20]

22. In my view, an approach to the pleadings issue based on the foregoing is appropriate in this case given the nature of the case and the complexity and extent of the claim for damages for breach of the repair obligations in particular.

23. There are five separates bases for the Defendant’s opposition to the grant of leave to amend. These can be broadly summarised as follows:-

    1.The reference to “fair wear and tear” pleaded as an allegation of breach is inappropriate as the phrase does not appear in any clause of the sublease which the Plaintiff alleges has been breached and it is insufficient to inform the Defendant of the alleged damage;

    2.The reference to “TAFF” in paragraph 70.9(a) is inappropriate other than in respect of where it relates to an item which has been partially removed;

    3.There is no allegation of material fact linking the Schedule and paragraphs 70.5(a) and/or 70.5(b) in respect of Items 6 and 14 in that Schedule and that the pleading should identify which of the three applicable categories, i.e., “Tenant’s Fittings” or “Tenant’s Alterations” or “Tenant’s Fitout”, applies in respect of each item;

    4.There is no, or insufficient, material facts linking the Schedule with paragraphs 70.5(a) and 70.5(b) as it lacks sufficient details of the particular piece of furniture which it is alleged was not removed;

    5.ASOC2 pleads matters inconsistent with admissions made by the Plaintiff’s solicitors.

24. More broadly, and particularly with respect to the last of those bases, the Defendant argues that the proposed amendments render the proposed pleading liable to strike out. If I were to be satisfied of that then on the authorities, leave would ordinarily be refused.[21] There are also general complaints, which sadly are regularly claimed in complex cases, that ASOC2 is in a form that the Defendant is unable to plead to and that it does not inform the Defendant sufficiently of the case it has to meet.

25. Dealing first with the fair wear and tear issue. The Schedule, in respect of the applicable items, alleges that the items were “moderately damaged beyond fair wear and tear”. Clause 6 of the sublease imposes an obligation of repair on the Defendant and that is subject to the proviso that the Defendant is not obliged to repair damage resulting from “fair wear and tear”. The Plaintiff’s claim as pleaded however is based not on clause 6 but on clause 17 and that does not contain any reference to fair wear and tear. The Defendant therefore argued that the reference to fair wear and tear is inappropriate.

26. The Plaintiff argued that it is appropriate to allege that particular damage is beyond fair wear and tear as it describes the extent and nature of the damage utilising an expression which has a long established and accepted meaning. I do not agree, especially given the addition of “moderately” preceding that phrase. It sets a threshold rather than being descriptive of the extent of damage. Although it may be true that the phrase has long standing usage in leases and the like, nonetheless the phrase is not a legal term and it is not a principle of law. It can only ever have application on a contractual basis. I do not accept that it can be utilised to describe the extent of the damage nor do I accept that it is appropriate if, as in this case, it has no bearing on the contractual terms.

27. The Defendant also argued that the particular pleading is insufficient given the different terms in clauses 6 and 17 of the sublease. Clause 17 provides for a standard of “good and substantial repair, working order and condition.” The Defendant argues that as the Plaintiff relies on clause 17, the Plaintiff should be required to plead that the damage was beyond “good and substantial repair, working order and condition”. I think that is correct and I will at least require the Plaintiff to plead that in bare form.

1. One of the Defendant’s concerns with the adequacy of this pleading is that the Defendant has a possible third party claim against Trepang Services Pty Ltd (“Trepang”), a company related to the Plaintiff, and possibly another party. The Defendant submits that it requires a proper pleading to decide whether to make a third party claim. I accept that that is an important consideration for the Defendant. I do not accept however that a technically perfect pleading is necessary for that purpose. If however that were to be established then given the discretionary approach that I propose to take on the current application, a discretionary approach could also be taken with respect to any Third Party Notice. For example, the time limited for the Defendant to issue a Third Party Notice could be extended to follow the filing and service of the Plaintiff’s evidence on damage.

2. The Plaintiff also argued that the reference to fair wear and tear in the pleading addresses a possible plea by the Defendant that the fair wear and tear threshold in clause 6 operates by implication in respect of the Plaintiff’s claim.

3. It is a long established and accepted principle,[22] since Hall v Eve[23] that a Plaintiff should not plead a statement of claim so as to meet an anticipated defence. More recent statements of this pleading rule can be found in Spicers and Detmold Ltd v Australian Automatic Cigarette Paper Co Pty Ltd[24]  and by the High Court in Fortescue Metals Group Ltd v Australian Securities and Investment Commission.[25] The Plaintiff’s submissions make it clear that it is anticipating a defence and that is inappropriate. The Plaintiff instead should await the Defence and if the Defendant pleads that the Defendant’s liability is subject to a threshold of fair wear and tear, then the Plaintiff will be able to address that in a Reply.

4. Although I could excuse this defect in an appropriate case in the exercise of my discretion, I do not see this as an appropriate case to do so. There is nothing to suggest that dealing with the issue by way of Reply, assuming the need to do so will eventuate, is not to be preferred. Additionally if the Defendant does not raise the point, an unnecessary pleading will have been avoided.

5. The Defendant also complains that a pleading simply of, or to the effect, that damage has occurred is a pure conclusion devoid of any supporting material facts. The Defendant argued that a reference to just “damage” is imprecise as damage could be functional damage or cosmetic damage not affecting function, or something else. The Defendant argued that the Plaintiff is required to plead precisely why the alleged damage goes beyond what is good and substantial repair, working order and condition. I do not accept that it is automatically a conclusion if a pleading simply refers to damage. Many pleadings often refer to mere “damage” without more and that is often considered sufficient. The pleading of a conclusion is not always a bad pleading. It depends on the extent of the generality.[26]  In any case, a pleading is not necessarily struck out if it is conclusionary. The modern approach to litigation is not to strike out such pleadings if the Court is satisfied that it need not do so in the circumstances.[27] Although the Defendant’s argument that the Plaintiff should plead precisely why or how the alleged damage goes beyond what is good and substantial repair, working order and condition is technically correct, I think that a more flexible approach should be adopted in this case given the complexity and extent of the damages claim as, in my opinion, the purpose of pleadings will be met in conjunction with the provision of the Plaintiff’s evidence.

6. For these reasons, subject to the amendment set out below, I am prepared to allow the Plaintiff to simply allege damage and to leave the nature and extent of that damage to the evidence, subject of course to the provision of particulars in appropriate cases and if requested. The amendment I refer to is to remove all references to “moderately fair wear and tear” wherever appearing and additionally to at least plead that the damage was beyond good and substantial repair, working order and condition as referred to in paragraph 27 above.

7. The second of the Defendant’s complaints is that paragraph 70.9(a) of ASOC2 contains an impermissible alternative allegation and that it should only be pleaded in respect of items which have been partially removed.

8. Paragraph 70.9(a) is one of the paragraphs in ASOC2 which explains the operation of the Schedule. It provides as follows:-

   70.9 the fourth column titled “Item description” identifies:

   (a) with the fifth column states ‘TAFF’, the item which the Commonwealth has failed to remove or alternatively, the item which the Commonwealth has removed and which removal caused damage to the Premises;

9. In paragraph 70.10(e) of ASOC2 “TAFF” is said to denote that the relevant item is alleged to be a “Tenant’s Alteration” or a “Tenant’s Fitout” or a “Tenant’s Fitting”. As an aside I have not found a definition of those three categories in the pleading. Those terms are each defined in clause 1.1 of the sublease and it appears the Plaintiff is adopting those definitions. If so, the Plaintiff needs to plead that those terms have the same meaning as the sublease as a minimum. Reliance only on the fact that the terms used in the pleading are precisely the terms in the sublease may not be sufficient.

10. If I correctly understand the effect of paragraph 70.9(a), where an item is described as “TAFF” the Plaintiff alleges that the Defendant either failed to remove the item or alternatively removed the item and thereby caused damage.

11. The example relied on for the purposes of argument on this point was the duress alarm system installed in the Facility. Based on that example, I think the Plaintiff’s submission that it is obvious from column 7 and the particulars of breach as to which of the alternative applies, is correct. As I expect that will be the subject of expert evidence, which I envisage will be in the form of an expert report as for the fair wear and tear issue, any technical defect, if there is one, can also be dealt with, in the exercise of my discretion, in the same way. To that extent, in the exercise of my discretion in the circumstances of this case, I am prepared to allow that pleading as it currently stands.

12. The third of the Defendant’s issues is that the columns in the Schedule relating back to paragraphs 70.5(a) and/or 70.5(b) in respect of Items 6 and 14 of the Schedule should separately identify whether the specific item is either a “Tenant’s Fitting”, a “Tenant’s Alteration” or a “Tenant’s Fitout”. Currently the pleading does not demarcate between the three categories of “TAFF”. Item 6 of the Schedule, which relates to flooring, is classified in column 5 as a “Fixture” or a “Landlord’s Fitting” or a “Structure”. The duress alarm system, which is Item 14 of the Schedule, is classified as “TAFF”.

13. Paragraph 70.5 of the pleading generally relates to the removal and repair obligation in clause 13.5 of the sublease. Both the clause of the sublease and the relevant paragraph of the pleading apply equally to each of the three categories comprising “TAFF”. In other words, and as the Plaintiff submits, the three categories overlap and are not mutually exclusive. The relevant clause of the sublease and the relevant paragraph of the pleading applies equally to any of the three constituent categories within the definition of “TAFF”.

14. Unless the Defendant can point to some necessity for separate identification and pleading of each of the three constituent categories of the term “TAFF”, nothing turns on it. In this respect the Defendant submits only that there is a possibility that different obligations may apply depending on the proper identification of the item as one of the constituent categories within the term “TAFF”. On my admittedly cursory consideration of the terms of the sublease, I cannot see why the demarcation is necessary. The Defendant’s submission merely alludes to the possibility that different considerations may apply and that is unhelpful. I dismiss this objection of the Defendant.

15. The fourth basis raised by the Defendant is that there is no, or insufficient, material facts linking columns 5, 6 and 7 of the Schedule and paragraphs 70.5(a) and 70.5(b) of ASOC2.

16. Specifically those items of the Schedule refer to damage caused during the installation of furniture which was not rectified by the time the Plaintiff re-took possession. Alternatively, it is pleaded that there are items of furniture which the Defendant has not removed and the Schedule refers to damage caused during installation of that remaining furniture, and which damage will need to be rectified when that furniture is removed, presumably by the Plaintiff.

17. The precise wording of column 7 in respect of Item 6 as it appears in ASOC2[28] is as follows:-

    Item is moderately damaged due to screw holes created by Commonwealth in installation of furniture (the furniture being TAFF) during the term of the Sublease; Commonwealth failed to fully remove furniture (being TAFF) on termination of the Sublease; Commonwealth failed to repair or damage to the floor and other parts of the Premises caused by what it did remove; Commonwealth is also liable for the damage to the floors in other parts of the Premises which has or will be caused by the removal of the rest of the furniture (being TAFF) by Wickham Point Development.

18. The Defendant submits that the pleading is insufficient as it does not identify which furniture was removed resulting in the damage as opposed to which furniture is still to be removed and the damage which will be required to be rectified.

19. Despite the current pleading, at the hearing the Plaintiff informed me that more recent enquiries reveals that no furniture at all has been removed by the Defendant and that the Plaintiff proposes a further amendment to plead that. In that case, even if I accepted the Defendant’s argument, it will not then be necessary to plead in the alternative. The further amendment will result in the pleading only alleging that the Defendant has not removed any of its furniture. The Plaintiff submits that in any case it did not need to demarcate which furniture has, and which has not, been removed.

20. I do not accept the Defendant’s submission and I believe the current pleading would have sufficed absent the further proposed amendment. The essential allegation the Plaintiff makes is one in respect of damage, specifically for damage caused when furniture was installed. The damage is the screw holes, presumably made when the furniture was fixed to the floor or walls. Had it been the case that some items of furniture had been removed, the claim would be that the screw holes related to those removed items have not been rectified. Had it been the case that some items of furniture had not been removed then the claim is that as those items of furniture were also affixed to the floor or wall by screws causing screw holes, upon the ultimate removal of any remaining furniture those screw holes would also need to be repaired.

21. On my reading of the relevant parts of the pleading, the reference to furniture is incidental. At best the reference to furniture is necessary for evidence purposes only. In other words it explains why the screw holes were made. The allegation for which material facts are required is the allegation of damage and the necessary particulars are the screw holes occasioned by the installation of furniture. Particulars of the repair works may also be required and it is for the Defendant to request these in the usual way if that is warranted. However the nature of the furniture, whether installed and subsequently removed, or not removed, is not a material fact. The Plaintiff’s pleading would have been sufficient if the Plaintiff had simply alleged, without reference to any furniture, that screw holes made by the Plaintiff were not rectified.

22. In respect of the same issue, the Defendant also complains that there is no pleading as to who supplied the furniture. The Defendant’s submissions suggest that the relevant furniture was supplied by Trepang. Although that may well be within the knowledge of the Defendant, other than the reference to “furniture supplied by Trepang Services Pty Ltd” in paragraph 60 (which does not relate to the repair claim), there is no pleading as to who supplied the furniture in respect of which this type of damage occurred. However I think the question of who supplied the furniture is as irrelevant as the precise categorisation of the furniture. This submission of the Defendant also ignores that the allegation is an allegation of damage. That it was caused and has not been rectified is the material aspect of the claim. It is not a material fact whether it was caused in connection with the installation of furniture and neither is the supplier of the furniture. Those are matters of evidence assuming relevance. I also dismiss this objection of the Defendant.

23. The last basis for opposition to the grant of leave is the general inconsistency argument, specifically that the pleading is inconsistent with the Plaintiff’s assertions in correspondence and therefore, based on Issage v White,[29] it will be embarrassing and therefore liable to be struck out as it relies on allegations which are false to the knowledge of the pleader.

24. The inconsistency is claimed to arise in the following way. In a letter from the Plaintiff’s solicitors dated 6 October 2017, the Plaintiff acknowledges firstly that the Defendant has removed “all of the chattels it is or was required to remove under the terms of the Sublease or otherwise from the Facility…”. That letter then goes on to specify, seemingly inconsistently with that previous acknowledgement, that there are chattels which the Defendant has failed to remove. Relevantly one of those items is “furniture and equipment provided to the Commonwealth by Trepang Services Pty Ltd”. The letter then goes on to say that the Plaintiff considers that the Defendant’s remaining chattels at the Facility have been abandoned and the Plaintiff proposes to dispose of them and seek the cost of doing so.

25. The letter then acknowledges that the Defendant has left specified chattels and fixtures at the Facility and goes on to assert that the Defendant has consequently relinquished any claim to those items. Eighteen separate items are listed, some referring to telephone infrastructure and equipment, some referring to furniture and appliances etc.

26. The effect of paragraphs 60 and 60A of ASOC1 is to allege, first in paragraph 60, that the Defendant kept some of its chattels in the Facility up to 5 July 2017. Thirty four items of chattels are then particularised in paragraph 60 B (i) – (xxxiv). Relevantly two of those are, subparagraph (xvi), “telephones and associated equipment” and subparagraph (xxx), “furniture supplied by Trepang Services Pty Ltd”.

27. Paragraph 60A of ASOC1 pleads that by “27 July 2007 the Commonwealth had removed its chattels from the Facility”. The Defendant apparently reads the reference to chattels in paragraph 60A as alleging that the chattels previously described in paragraph 60 have since been removed by 27 July 2017.

28. Paragraph 61 then pleads that the Defendant “did not remove its fittings, alterations or fitout from the Facility nor repair any damage caused by such removal” on or before 5 July 2017”. The particulars then list the relevant fittings, alterations or fitout and relevantly include, for example, “telephone system”. Relevantly there is no reference to “furniture supplied by Trepang Services Pty Ltd” nor to “telephones and associated equipment” unless the reference to “telephone system” in paragraph 61 is intended to be a reference to that, but I do not accept that as the two terms are not identical.

29. The Defendant’s inconsistency point is that on a proper reading and construction of the pleading, the Plaintiff is taken to concede that the Defendant has removed all its chattels from the Facility including “telephones and associated equipment” and “furniture supplied by Trepang Services Pty Ltd” at the very least. Specifically the Defendant submits that each of the items listed in the particulars under paragraph 60 of ASOC1 are also “chattels” and are also the subject of the Plaintiff’s concession in its letter of 6 October 2017. The Defendant’s argument is based on the belief that the reference to “chattels” includes items defined as “TAFF”.

30. The Defendant points out, as an example of the effect of the inconsistency, that there are 68 items in the Schedule containing an allegation that the Defendant failed to remove telephones. In respect of each of those 68 items, the word “Telephone” appears in the fifth column as the Item Description. However, in each case in the sixth column under the heading of Item Classification, it is also alleged in each case that the item is “TAFF”, i.e.,  fittings, alterations or fitout.

31. In respect of “furniture supplied by Trepang Services Pty Ltd” the inconsistency between the existing pleading and the letter from the Plaintiff’s solicitors of 6 October 2017 was the subject of further correspondence between the parties ending in a further letter from the Plaintiff’s solicitors dated 12 October 2017. There the Plaintiff’s solicitors advised that the Plaintiff “will not press a claim for damages for the cost of removing chattels owned by Trepang Services from the Facility after 27 July 2017 where those chattels are not tenant’s alterations, tenants fittings and/or tenant’s fixtures”. Specifically it is pointed out that the Plaintiff is still claiming the cost of removing anything supplied by Trepang which amounts to a fitting, alteration or fitout and repairing all damage caused by the removal of same were excluded. Clearly that excludes items describes as “TAFF”.

32. The Defendant argued that the effect of paragraph 60 and 60A is that the Plaintiff alleges that the Defendant left certain “chattels” on the premises and that they were subsequently removed by a specified date. The Defendant therefore says that there is an inconsistency in the allegation that further damage will be caused when furniture, which is yet to be removed, is ultimately removed. That is said to be inconsistent with paragraph 60A namely, that the Defendant has removed all its chattels.

33. Although I agree with and accept the pleading principle referred to in the Defendant’s submission based on Issage v White,[30] I do not accept that there is inconsistency for that purpose.

34. One of the further amendments the Plaintiff now intends to make is to delete paragraph 60A and that essentially ends the Defendant’s argument. However as I am of the view that the matter was correctly pleaded in any case, I will still deal with the argument.

35. Paragraphs 60 and 60A, which only relate to the holding over claim, refer only to “chattels”. It is clear however that column 7 of the Schedule and the related paragraphs of ASOC2 refers to furniture or other items which are described and defined as “TAFF”, i.e., either a “Tenant’s Fitting” or a “Tenant’s Alteration” or a “Tenant’s Fitout”. The definition of that term makes it clear that these items, whether or not they are chattels in the legal sense of the word, are not the chattels referred to in paragraph 60 and 60A of ASOC2. Hence, and contrary to the Defendant’s view that the term “chattels” must include items described as “TAFF”, in my view, paragraphs 60 and 60A on the one hand and paragraph 70 and the Schedule on the other hand do not relate to the same category of items. Hence there is no inconsistency.

36. The Defendant also complains that the formulaic allegation namely, “failed to fully remove furniture” is inappropriate. The Plaintiff argued that the crux of the Defendant’s objection is that put simply the multiple pleadings look the same. The Plaintiff maintains however that the pleadings satisfy the pleadings rules as they stand. I disagree with that submission and I consider the Defendant is technically correct. However, in my view the extent and complexity of the repair claim requires a modified approach to the pleadings rules. I am prepared to allow that form of pleading in the circumstances of this case and in the exercise of my discretion.

1. The further affidavit of Lauren Michelle Tattersall made 8 November 2017 contains the latest iteration of ASOC2 in Annexure LMT27 although without the Schedule. I will give leave for the amendments indicated therein. Annexure LMT28 sets out amendments in respect of Items 6 and 14 of the current Schedule. Annexure LMT29 is a list of the numerous items in the existing Schedule which are proposed to be amended along the lines of Item 6 as that appears in LMT28. I will give leave for the amendments indicated therein also. However Item 1 as it appears in the existing Schedule is not the subject of further amendment and that will require an appropriate amendment in accordance with paragraphs 27 and 33 above. The Plaintiff needs to consider if the matters I raise in paragraph 36 need to be addressed and if an amendment is required I will grant leave for that purpose also.

2. In relation to the summons seeking discovery orders, initially three orders were sought. The order sought in paragraph 1 relates to six documents provided by the Defendant to the Plaintiff with parts redacted. The Plaintiff seeks unredacted versions. The parties resolved paragraph 2 prior to hearing. Paragraph 3 seeks an affidavit of discovery in respect of the documents sought in paragraph 1 in the event that that order is made.

3. The parties are generally in agreement as to the principles applicable to redactions within documents which, in summary form are:

   (a) although some redactions may be permitted, a discovering party is prima facie required to produce for inspection the whole of a document notwithstanding that parts may be irrelevant (see Octagon Inc v Hewitt (No 2)[31] (“Octagon”);

   (b) the onus to establish an appropriate basis for redaction rests with the party resisting production of the whole of the document (Octagon);

   (c) where redaction is in dispute it is for the court to determine whether the party has a right to make the redaction (Octagon);

   (d) the redactions of irrelevant parts of a document will not be permitted if that results in gaps affecting the intelligibility or meaning of the unredacted parts (Octagon);

   (e)confidentiality alone is not a sufficient basis to deny production of the document to an opposing party as in most cases the rule that documents may not be used except for the purposes of the litigation afford sufficient protection to the party producing the documents (Mobil Oil Australia Ltd v Guina Developments Pty Ltd)[32];

   (f) a different approach may be taken where a party obtaining discovery is a trade rival of the party making discovery and the production of the documents may disclose trade secrets;

   (g)the guiding principle in determining whether to permit redaction is what is necessary to ensure the attainment of justice between the parties (Gunns Ltd v Maher[33]) and that can involve a balancing of competing interests.

4. In summary, as long as the redacted portion is irrelevant and not necessary to make the remainder of the document intelligible, a party may be permitted to redact irrelevant parts if it is in the interests of justice to do so. The onus in all respects is on the party seeking the redaction and that includes in respect of the justification for the redaction.

5. The justification for the redaction in each case was claimed to be that the redacted figures are confidential pricing or costing information.

6. There is no suggestion that the redaction detracts from the comprehensibility of the remaining part of the document. That factor can therefore be disregarded.

7. The documents relate to an assessment by the Defendant of the proposal of the Plaintiff with respect to the provision of the Facility. The assessment was made to determine whether the Plaintiff’s proposal represented comparative value for money. The documents the subject of the redactions are part of a number of documents which relate to the comparison done by the Defendant between the proposal to sublease the Facility from the Plaintiff and an available alternative namely, for the Defendant to construct its own facility. The Defendant disclosed the documents on the basis that they are relevant to the determination of the issue as to whether the representation of a timeframe of at least 10 years was made as they indicate that the Defendant was only considering a two or three year term.

8. Only the dollar amounts have been redacted from the documents and the Defendant argued that the actual dollar amounts are irrelevant to the issues. The Plaintiff disputes relevance and on this point I agree with the Plaintiff. The reasons for that follow however even if I were to agree that the redacted parts are irrelevant, the Defendant must still justify the redaction and satisfy the interests of justice test. Central to that is the claimed justification. For the reasons that also follow, in my view the redaction is not justified such that the interests of justice would not favour permitting the Defendant to maintain those redactions in any case.

9. Relevance for current purposes must be determined by reference to the pleadings. The pleadings relevant to this question are paragraph 10 of ASOC2, which contains the material facts in respect of the representations or promises made, paragraph 12 which alleges the inducements based on those representations, and paragraph 22 which sets out the actions taken by the Plaintiff in reliance of those representations, essentially building of the Facility.

10. The Plaintiff’s argument is based on evidence it will lead at trial to the effect that the rental provided for in the sublease was unrealistically low if there was only to be a two or three year lease having regard to the cost of construction of the Facility. The Plaintiff alleges that the Defendant was aware and knew that the rental payments the Plaintiff was to receive was significantly less than what was necessary if it were to recoup its construction costs. The Plaintiff argues that the greater the difference between the amount of rental paid by the Defendant and the rental required to have regard to the construction costs, the more likely it is that the Court will accept the Plaintiff’s evidence that a representation was made.

11. This seems to assume that it was contemplated that total rental paid would see the construction costs recouped. There is no evidence of that currently. Why the Plaintiff would only contemplate the proposal if the total rental over the term would see the construction costs recouped is not evident as the Facility would no doubt have a residual value and an ongoing rental value after the Defendant vacated the Facility. However that is a matter of other or further evidence and does not affect the relevance of the documents.

12. The Defendant argued that to establish relevance in those terms would require the pleading to contain an allegation that the rental offer of the Plaintiff to the Defendant was such that the Defendant was aware of the extent to which the terms of the lease were unrealistic, or similar. Put simply, the Defendant submitted that the existing pleadings are insufficient to establish relevance.

13. I accept the Plaintiff’s submission. I do not agree that the pleading needs to be as specific as the Defendant argues. The Plaintiff’s submission is that the extent of the difference in rental, both with and without regard to construction costs is relevant to the question of whether the terms offered by the Plaintiff were realistic in respect of a short term lease and to that extent the redacted amounts are relevant to the question of whether the representations which have been pleaded by the Plaintiff were made. On that argument, the redacted figures are relevant to the issues and in that case redaction would not be permitted.

14. Addressing now the position had I accepted the Defendant’s argument. The Defendant’s claim to confidentiality relies on the claim that the documents in question relate to the Defendant’s analysis of the proposal. It is apparent from the unredacted parts of the documents that the redacted parts deal with the estimated construction costs if the Defendant was to build its own facility. The Defendant submits that the assessment of value, by comparison with the alternative of the Defendant constructing its own facility, is and remains commercially sensitive for as long as the Defendant may have a need for immigration facilities in the Northern Territory. I consider that to be too speculative to carry much weight. The strongest answer to that is that Defendant vacated the Facility and has not established an alternative facility. There is no evidence that there is a likely need. Even if so, as the assessments in the redacted documents were conducted more than seven years ago, it is difficult to see how they could possibly remain current now.

15. It was also suggested by the Defendant that the parties might engage again in the future in respect of further immigration accommodation facilities[34] and therefore confidentiality is required in that event. That is also speculative and that is an extremely unlikely scenario in my view.

16. In respect of the assessment of the interest of justice, the Defendant put in evidence a letter from an officer of the Plaintiff[35] which runs counter to the alleged representation. That evidence can be relied on to assess the strength of the Plaintiff’s case when balancing the competing interests for the purposes of the interests of justice test. That is a proper consideration in the balancing exercise. I have regard to that evidence for that purpose. However that is not conclusive on its own as there is no suggestion that that is the entirety of the evidence which the Plaintiff will rely on in respect of the representations or estoppel issue.

17. I also take into account that evidence could be led by the Plaintiff of actual construction costs and this also could support the findings hoped for by the Plaintiff in the same way as evidence of the comparative costs assessed by the Defendant. That however does not render the Defendant’s assessment irrelevant. It would remain relevant to enable the Plaintiff to establish the knowledge of the Defendant in that regard.

18. Having regard to the foregoing, even if I were to agree that the redacted parts were not relevant, in my view there is insufficient justification for the redactions.

19. In summary, in respect of the Plaintiff’s summons seeking leave to amend, subject to the further amendments to Item 1 of the Schedule in accordance with paragraph 64, as well as any necessary changes to deal with the matters I raise in paragraph 36, I give leave in respect of the amendments in Annexure LMT27 of the affidavit of Lauren Michelle Tattersall as well as in respect of Items 6 and 14 of the Schedule as indicated in Annexures LMT28 and LMT29 of that affidavit.

20. In respect of the Plaintiff’s summons seeking discovery orders, I am prepared to make the order sought in paragraph 1. There was no argument and no submissions in respect of the order in paragraph 3, i.e., for an affidavit verifying that discovery. I expect that the Plaintiff’s entitlement to that is conceded. I think that is rightly so given Rule 29.03(5) of the SCR which requires a party to verify discovery by affidavit if requested by another party. As that is an entitlement in respect of general discovery, then without more I also make an order in terms of paragraph 3 of that Summons.

21. I will hear the parties as to costs and any ancillary orders, such as the time to be allowed to the Plaintiff to file and serve the amended pleading and to fix a suitable time for the provision of the Defence.

[1]     Rule 36.01(2) provides that the term “document” includes a pleading.

[2]     Rule 63.11(7) mandates this.

[3]     See generally, M Grant, Civil Procedure Northern Territory at para 5.36.29.

[4] [2009] NTSC 46.

[5]See paras 46 and 61 in relation to the Plaintiff’s intention to inter alia delete paragraph 60A of ASOC1 and ASCO2, as well as to make certain amendments to the Schedule.

[6] (1982) 148 CLR 658.

[7] [2002] FCA 87.

[8] [1999] FCA 499.

[9]     Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499.

[10] (1991) 105 ALR 456.

[11] (1991) 105 ALR 456 at p 466.

[12] [2002] FCA 87.

[13] [2002] FCA 87 at para 20.

[14] [1999] FCA 499.

[15] [1999] FCA 499 at paras 18-22.

[16] [2002] VSC 203.

[17] [2002] VSC 203 at para 40.

[18] [2006] WASC 281.

[19] [2006] WASC 281 at p 84.

[20]     Practice Direction 6 of 2009, paras 3-11.

[21]United Super Pty Ltd v Randazzo Investments Pty Ltd [2009] NTSC 50; McDonnell Shire Council v Miller [2009] NTSC 46.

[22]See the discussion in B Cairns, Australian Civil Procedure, Eleventh Edition at p 291.

[23] (1876) 4 Ch D 341.

[24] [1942] VLR 97.

[25] (2012) 247 CLR 486.

[26]Kernal Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd, unreported, Federal Court of Australia, French J, 3 September 1991.

[27]     Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499 at para 21.

[28]One of the further proposed amendments to be made by the Plaintiff is to substitute alternative wording, see para 46.

[29] (2000) 172 ALR 586.

[30] (2000) 172 ALR 586.

[31] [2011] VSC 373.

[32] [1996] 2 VR 34.

[33] [2008] VSC 464.

[34]     Affidavit of Lauren Michelle Tattersall made 3 October 2017, Annexure LMT25.

[35]     That person is described as the commercial manager of the Plaintiff in para 2.3 of ASOC2.