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  • Unreported Judgment

Lacaba Ahden Australia Pty Ltd v Bucyrus (Australia) Pty Ltd

 

[2005] QSC 335

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Lacaba Ahden Australia P/L v Bucyrus (Australia) P/L [2005] QSC 335

PARTIES:

LACABA AHDEN AUSTRALIA PTY LTD
ACN 060 911 864
(plaintiff/respondent)
v
BUCYRUS (AUSTRALIA) PTY LTD
ACN 000 819 232
(defendant/applicant)

FILE NO/S:

BS 4122 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application for Further and Better Particulars

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2005

JUDGE:

McMurdo J

ORDER:

The plaintiff amend item 8 of schedule 1 to its statement of claim, and to provide proper particulars of that amended item 8, and to withdraw such parts of its present particulars of item 8 which are no longer relied upon, within seven days of this judgment

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – PARTICULARS – where the plaintiff and defendant were in a contract for the erection of a dragline – where the plaintiff claimed a further amount owing for its work – where the plaintiff claimed that it had been delayed by certain acts which caused the date of completion to be delayed – where the defendant applied for particulars of events which had allegedly caused the delay – where the plaintiff declined to provide the particulars on the basis that the expense was unwarranted, but proposed to provide its witness statements – where witness statements, including an expert’s report, were provided by the plaintiff – where the defendant argued that particulars served a different function from the evidence – where there was inconsistency between the particulars provided thus far and the proposed evidence – where the defendant claimed the “global case” argued by the plaintiff caused oppression and unfairness – whether further particulars should be provided

Uniform Civil Procedure Rules 1999 (Qld), r 162

COUNSEL:

R A Holt SC, with E J Longbottom for the applicant

J K Bond SC, with P R Franco for the respondent

SOLICITORS:

Phillips Fox for the applicant

Minter Ellison for the respondent

  1. McMURDO J:  The parties made a contract for the erection and commissioning by the plaintiff of a dragline for use at the Peak Downs Mine.  In these proceedings, the plaintiff claims to be owed a further (approximately) $3.6 million for its work.  Part of its case is that by factors not of its making, it was delayed, with consequences for the point at which practical completion was reached and also for the ultimate cost of its performance. 
  1. This is an application by the defendant for further particulars of part of that delay case. The relevant paragraphs of the plaintiff’s pleading[1] are as follows:

“15.During the course of the work, Lacaba was delayed in achieving Practical Completion by causes beyond its reasonable control (including acts or omissions on the parts of Bucyrus, the Engineer or their servants or agents) as set out in schedule 1 of this pleading.

21.During the course of the work, Lacaba was delayed by acts of Bucyrus as set out in items 1, 4, 5, 6, 7, 8 and 89 of schedule 1 of this pleading.

27.During the course of the work, the erection of the dragline was prevented by acts or omissions of Bucyrus as set out in items 1, 4, 5, 6, 7, 8 and 9 of schedule 1 of this pleading.”

  1. Each of those paragraphs refers to schedule 1 to the pleading. That schedule comprises an eight page table together with a number of attachments. The schedule is headed “Delays to the ability of Lacaba to achieve practical completion”. Amongst the matters there listed as causing certain periods of delay, there is that which is numbered eight and which is described as “Events which caused delay to occur during the period from 20 March 2000”. Against that item 8 there is an attributed delay of 26 days, and details of those “Events” are set out (in schedule 1) in these terms:

“1.Lacaba estimates that during the period from 20 March 2000, 26 days delay was caused by events for which it was not responsible.

  1. The causally significant events were –
    1. variations performed in the period from 20 March 2000; and
    2. events (including some earlier variations) which caused original scope work to be displaced from when it would have been performed with the result that it had to be performed during the period from 20 March 2000.
  2. As to the variations performed in the period from 20 March 2000, appendix 2 to attachment 1 to this schedule lists the variations that were performed in the period from 20 March 2000 along with the direct manhours recorded for each variation.  Further particulars of those manhours were provided in attachment E2 to Lacaba’s particulars of July/August 2002.
  3. As to the events which caused original scope work to be displaced –
    1. the original scope work which was displaced is identified in appendix 1 to attachment 1 to this schedule; and
    2. the events which caused original scope work to be displaced are particularised in appendices 3 and 4 to attachment 1 to this schedule.
  4. As to the manner in which the causally significant events caused the 26 days delay-
    1. Lacaba estimates that during the period from 20 March 2000, the variations caused 21 days delay.
    2. Lacaba estimates the other events which it has identified operated concurrently with the variations for 21 days and then account for the balance of the 26 days it has claimed.
    3. It is impossible or, alternatively, impracticable for Lacaba to identify a connection between each of the causally significant events which it has identified and a discrete amount of delay.  The delay which was suffered occurred because of a complex interaction between the causally significant events and their consequences.
    4. Further particulars of the case which Lacaba advances as to the manner in which the causally significant events caused the 26 days delay (including particulars of the manner of interaction between those events) are set out in attachment 1 to this schedule and in Lacaba’s particulars dated 4 June 2004.
    5. There is no other explanation for that delay than the causally significant events which Lacaba has identified.”
  1. According to those particulars then, the events which caused (in total) a delay of 26 days from 20 March 2000 were of two kinds. First there was delay from variations which were performed within that period. Secondly, there were events (including some variations already performed) which caused the original scope work to have to be performed later, and specifically during this period from 20 March 2000. As to events of that second kind, the reader is then referred to particulars within appendices 3 and 4 to attachment 1 to this schedule 1.[2]  Those appendices 3 and 4 are each in a tabular form comprising several pages. 
  1. By this application, the defendant seeks orders for further and better particulars of these appendices 3 and 4. In the alternative it seeks an order that these appendices, together with those parts of item 8 to schedule 1 (as set out above) which refer to appendices 3 and 4 be struck out pursuant to the Uniform Civil Procedure Rules 1999 (Qld),  r 162. 
  1. On 27 October 2004 the defendant delivered a request for particulars of every item within appendices 3 and 4. The first item of appendix 3, and the request for particulars of it, exemplifies the then respective approaches of the parties. In that first item, there was a claim that certain “original scope work”, involving the base of the dragline, had to be rescheduled because of delays caused by variations in relation to “swing reactors”. Because this work was done at a later stage, appendix 3 claims that it took 26 hours instead of less than one day. The particulars of “how scope work was displaced” were in these terms:

“The fitting of tub covers was rescheduled within the context of the ever present and substantial delays caused by the variations to swing reactors.  Because the machine was not proven to swing it was prudent to leave access to the base to enable final inspections of the machine.  Ordinarily this would have occurred immediately after machining had been completed in less than 1 day.”

 

The defendant’s request for particulars of this item was as follows:

“1.With respect to the item in Appendix 3 relating to Code 2003, provide the following particulars:

 

(a)With respect to the column headed “Scope Work Performed” identify:

(i)Each component of the “normal scope” referred to thereunder;

(ii)The dates on which each component of the normal scope works identified in 1(a)(i) would have been done but for the alleged displacement;

(iii)when each component of work identified in 1(a)(i) was carried out during the period identified under the column “period” specifying the number of manhours expended.

  1. With respect to the column headed “Particulars of How Scope Work was Displaced”:

(i)Identify the number and position of each of the tub covers to be fitted;

(ii)Specify the dates when the “fitting of the tub covers” was scheduled to be carried out;

(iii)Specify the manhours on each date listed in the column headed “period” when the “fitting of the tub covers” was actually carried out;

(iv)Specify by whom the fitting of tub covers was rescheduled and, if it is alleged that it was directed or instructed by Bucyrus, provide the usual particulars in relation to each direction or instruction;

(v)Identify the date on which each of the ever present and substantial delays commenced;

(vi)Identify the date on which each of the ever present and substantial delays ceased;

(vii)With respect to each variation to the swing reactors referred to therein provide the following particulars:

A.The nature of each variation;
B.The usual particulars of any direction or instruction in relation to each variation;
C.The date or dates on which each variation was performed;
D.The substantial delay by reference to date and manhours caused in relation to each variation;
  1. Identify the date by which the machine was scheduled to swing;
  1. Identify the date on which the machine was proven to swing;

(x)Provide particulars of the facts, matters and circumstances relied upon to support the allegation that the fitting of the tub covers took more time than the time it is alleged it would ordinarily have taken.”

  1. In November 2004, the plaintiff’s solicitors declined to provide the particulars, saying that the expense was not warranted. They proposed that the plaintiff would instead provide its witness statements which would sufficiently inform the defendant of the ambit of its case. That suggestion was at first rejected by the defendant. On 9 December 2004 it filed an application for further and better particulars of appendices 3 and 4 as it had requested. But when the matter was reviewed by me in the Supervised Case List on 13 December 2004, I made orders by consent that the plaintiff file and serve its witness statements, together with a document which cross referenced paragraphs of those statements to allegations in schedule 1 to the statement of claim, including appendices 3 and 4. It was further ordered (by consent) that upon the plaintiff filing and serving those statements and the cross referencing document, the plaintiff would be relieved until further order from providing the particulars which the defendant had requested, and the defendant’s application for particulars was adjourned to a date to be fixed.
  1. Various witness statements were provided by the plaintiff in May and June and a cross referencing document was delivered on 30 June. The defendant complained that the witness statements did not provide the equivalent of a proper set of particulars. The plaintiff continued to provide further statements including an expert’s report by Mr I D McQueen which is dated 10 October 2005.
  1. The plaintiff says that its case, at least in relation to that component the subject of the defendant’s present application, is sufficiently articulated in the expert’s report. It says that no particulars are required, because a reference to that report would tell the defendant everything which it would learn from a set of particulars. It argues that the defendant’s pressing for particulars, in the face of an assurance that the plaintiff’s case is according to the expert’s report, shows that the defendant is not genuine in its concern, but is seeking particulars as a deliberate delaying tactic.
  1. The defendant argues that particulars have a different function from evidence. The pleadings and particulars ought to properly define the case and thereby define the ambit of admissible evidence. And it says that having regard to the case indicated by the expert’s report, which is in the nature of a global claim, fairness requires that the plaintiff provide as much particularisation as is possible.
  1. There will be circumstances where a party can be fairly informed of the case put against it by a combination of a pleading, witness statements and a clear indication of the parts of those statements to be relied upon in support of certain allegations in the pleading. That was effectively recognised when the parties agreed to the orders of last December. Conceivably there will be cases where the proposed evidence, reduced to writing, will state more concisely the case a party intends to advance than a lengthy set of particulars.
  1. However, a significant difficulty for allowing the proposed evidence to stand as particulars in this case is the inconsistency between the particulars which have been provided thus far and the proposed evidence. It is not that the plaintiff wants to further particularise its pleaded case by reference to its evidence. The plaintiff wants to substitute its evidence for at least some of that pleaded case. Yet it resists the application to strike out appendices 3 and 4.
  1. The plaintiff argues that its case as now found in the expert’s report, in relation at least to this component of its claim, is an uncomplicated one which can be shortly stated, and as explained by the plaintiff’s submissions, that seems to be so. But it then follows that the provision of substitute particulars should not be time consuming or expensive. Those (new) particulars would at least make the pleaded case conform to the proposed evidence. And they would provide a concise statement of the boundaries of the plaintiff’s claim, instead of that having to be discerned by reading the various parts of the proposed evidence in conjunction with solicitor’s correspondence and perhaps also a transcript of the argument upon this application. The real reason why the plaintiff resists that course is that it fears that it will bring yet a further complaint about particulars, especially having regard to what the defendant says are the particular requirements of a pleading of a so called global claim for damages for delay under a construction contract. That ought not to follow. The provision of particulars along the lines of those discussed in the course of argument ought to be sufficient. Of course, until the precise terms of those particulars appear, there could be no ruling upon them.
  1. What now is the plaintiff’s case? Going back to schedule 1 to the statement of claim, the period of delay to be the subject of item 8 is 25 days (not 26 as pleaded) from 22 March 2000 (not 20 March). The “causally significant events” are (still) comprised of either variations performed within this period or events (including some earlier variations) which had caused original scope work to be displaced so that it had to be performed during this period. As I have mentioned, there is no complaint, at least at present, as to the particulars of the variations performed during this period. Mr McQueen says that these variations caused 18 of the 25 days delay. Another witness for the plaintiff will say that those variations caused 21 of the 25 days. The present debate concerns the balance, that is a period of 4 to 7 days. (It is open to the plaintiff to plead its case in the alternative.) Counsel for the defendant points to paragraph 5(b) of schedule 1 in which it is said that the “other events which [the plaintiff] has identified operated concurrently with the variations for 21 days and then account for the balance of the 26 days it has claimed”.  The defendant reads this as saying that if the case for delay from having to perform variations within this period fails entirely, the plaintiff would still claim the entire period of (now) 25 days for these other matters.  The plaintiff says that this is a misunderstanding of its case, and that any further particulars would make it clear that these other events were the cause of only 4 to 7 days of delay.  There is and will be an alternative allegation that the whole of the 25 days can be attributed to one variation, which is the relocation of the swing reactors.
  1. According to the plaintiff’s submissions, the “other events” causing this 4 to 7 day delay are, as expressed in para 135 of the expert’s report, variations performed from 1 February to 20 March 2000 as listed in attachment 1 to schedule 3 of the statement of claim and the delays with supplies of those parts and materials that are identified in appendix 57 of the expert’s report. The expert’s methodology in attributing 7 days of delay to these matters is criticised by the defendant as a global claim and, if the further particulars simply replicated the expert’s opinion, one which would lack the required particularity. It is described as a global claim because the expert, and in turn the plaintiff, say that a particular delay in the performance of a certain item of scope work cannot be attributed to a certain variation or to a certain late supply of a part or material. The expert says this is “because of the dynamics and interrelationships between scope and variation work and because of the large number of separate variations”. The plaintiff is entitled to put its case in that way. The question of whether this “global” approach is a reliable and persuasive basis for determining a certain period of delay is one for trial. It is argued, by extensive reference to cases dealing with the proper pleading and case management of construction disputes,[3] that global claims have a potential for oppression and unfairness; that they enable a generalised claim to be put up by a plaintiff which requires a defendant, as was argued here, to “rebuild the job” in order to answer it.  Whilst valuable guidance can be obtained from such authorities, it is what is required in the individual case which must be considered.  In particular it is in the context of the particular case that the balance must be struck between allowing a plaintiff to put forward a general but apparently arguable case and the need for the defendant to know what case it has to meet and to be informed of any matter which, if unpleaded, would fairly take it by surprise.  On the face of it the plaintiff’s case is now supported by the evidence of an expert who has provided his opinion according to the requirements of the rules for expert witnesses.  There is no proper basis for preventing the plaintiff from presenting this “global case” in support of a claim based upon this delay of 4 to 7 days.
  1. The plaintiff will have to amend what is pleaded in item 8 of schedule 1 insofar as there is a reference to events which caused the original scope work to be displaced. The events are to be particularised as they are described in para 135 of the expert’s report, and insofar as there is some further detail which is required to fairly inform the defendant and to prevent surprise. That is likely to be an undemanding task. There will also have to be some particulars of the quantification of the claim of 4 to 7 days, which will accord with the estimates and calculations described in the expert’s report. If those particulars are then provided, nothing further ought to be necessary.
  1. The plaintiff will be ordered to amend item 8 of schedule 1 to its statement of claim, and to provide proper particulars of that amended item 8, and to withdraw such parts of its present particulars of item 8 which are no longer relied upon, within seven days of this judgment.
  1. I will hear the parties as to costs.

Footnotes

[1] Further Amended Statement of Claim filed 10 September 2004

[2] From para 4(b) as set out above

[3] John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 8 VR 681; Imperial Chemical Industries PLC v Boris Construction Ltd (1992) Con LR 90

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Editorial Notes

  • Published Case Name:

    Lacaba Ahden Australia P/L v Bucyrus (Australia) P/L

  • Shortened Case Name:

    Lacaba Ahden Australia Pty Ltd v Bucyrus (Australia) Pty Ltd

  • MNC:

    [2005] QSC 335

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    16 Nov 2005

Litigation History

No Litigation History

Appeal Status

No Status