Cook's Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd
[2008] QSC 186
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- Unreported Judgment
- Appeal Determined (QCA)
- Cook's Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd[2008] QSC 186
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Cook's Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd[2008] QSC 186
Cook's Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd[2008] QSC 186
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 22 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 February 2008 |
JUDGE: | Martin J |
ORDER: |
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PLEADING – AMENDMENT – application to amend statement of claim once trial has commenced – where there is no explanation for failure to plead amendment earlier – where amendment changes the plaintiff’s case on a central issue. ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI RECORD – FORMER ADJUDICATION – ISSUE ESTOPPEL – GENERAL MATTERS – where there had been pre-trial orders relating to pleadings – whether decision set out a concluded view as to the proper construction of a sub-contract. Cook’s Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2004] QSC 066, considered Castillon v P&O Ports Ltd [2007] QCA 364, applied State of Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146, applied |
COUNSEL: | D J Digby QC, with S R Grahame, for the plaintiff K E Downes, with S B Hooper, for the defendant |
SOLICITORS: | Clarke & Kann, as town agents for McPherson & Kelley, for the plaintiff McCullough Robertson for the defendant |
[1] I gave leave to the plaintiff to amend its statement of claim on the sixth day of this trial. These are my reasons for doing so.
[2] On the fifth day of a trial estimated to last 15 days, the plaintiff seeks leave to amend its statement of claim. This is not the first such application made for amendment. It is, at least, the tenth time the plaintiff has formally sought to amend its pleading, the most recent application being on 31 January this year.
[3] The amendments which are sought are in two broad categories:
(a) Major – in that the plaintiff seeks to amend paragraph 7 to plead (both substantively and in the particulars) that the quantity of earthworks the subject of the claim is to be measured by reference to, among other things, the commencing surface as shown in electronic format on a digital terrain model based total station data produced by Peter Robinson & Associates.
(b) Minor – in that the plaintiff seeks to amend paragraphs 16, 44, 119 and attachment ‘C’ by inserting references to additional drawings.
[4] All of the amendments sought are opposed but it is fair to say, I think, that the opposition is focused mainly on the major amendments sought. What I have described as “minor amendments” will not cause any prejudice which cannot be adequately remedied by an appropriate costs order. Therefore, I give leave to amend paragraph 16, 44, 119 and attachment ‘C’ in the form presented to the Court on 8 February 2008.
[5] The opposition to the major amendments is substantial. The defendant relies on:
(a) issue estoppel;
(b) the history of the litigation;
(c) the lateness of the amendments;
(d) that the amendments changed the plaintiff’s case on a central issue; and
(e) there is no acceptable explanation for the failure to plead this amendment earlier.
Issue Estoppel
[6] In order to understand this argument it is necessary to return to the statement of claim in the form it had on 26 April 2002. Paragraph 6 of the Further Amended Statement of Claim relevantly provided as follows:
“In accordance with the terms set out in paragraph 4 above, Cook’s undertook the bulk earthworks, raw water/evaporation pond gravel paved area and site roads works in the following quantities:
(a)12,635 cubic metres of Engineered Fill for Plant Site Bulk Earthworks
(b)126,947 cubic metres of bulk excavation of raw water/evaporation pond
(c)87,503 cubic metres of engineered fill of raw water/ evaporation pond
(d)28,536 square metres of sub-based type 2 laid on site roads
(e)23,638 square metres of sub-based type 2 laid on gravel paved areas.”
[7] The defendant sought particulars of the statement of claim and with respect to that paragraph particulars were sought, among other things, of the method of calculation of the quantity, rate, amount paid and so on.
[8] In response to that request, the plaintiff stated:
“The particulars of the quantities as set out in the letter from Cook’s to Stork dated 6 November 2000 and the drawings attached thereto. A copy of the letter and the drawings are in the possession of the plaintiff’s solicitors and are available for inspection by prior appointments. A summary of the quantities and rates with references to relevant drawings is attached hereto and marked ‘A’. The documents which were attached to that letter consist of a series of survey certifications by Peter Robinson and a number of as built drawings of various parts of the site.”
[9] In a further letter from the plaintiff’s solicitors of 17 April 2002, it was stated that:
“The plaintiff notes that the plaintiff has provided copies of summaries of quantities and plans prepared by Peter Robinson for each of the items claimed in the corresponding paragraphs of the FASC. Each plant has dimensions set out, so that the defendant is provided with the location and the type of material and the quantity removed. The documents relied on by Peter Robinson to prepare those summaries and plans are evidence and in accordance with the matters set out in paragraph 9A above, the plaintiff is not required to particularise same. The documents will be available through the process of disclosure.”
[10] The defendant continued to attempt to extract further particulars from the plaintiff and eventually brought the application before Moynihan SJA which was heard on 18 November 2002. The defendant sought a number of orders with respect to the whole of the pleading but for the purposes of this application only the parts of the decision relating to the application to strike out particulars based on a failure to provide sufficient information will be considered. The approach to this issue by Moynihan SJA can be seen in the following extract from his reasons in Cook’s Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2004] QSC 066.
“Relevant Contractual Terms.
[26]The subcontract consists of an instrument of agreement with a number of sets of documents identified as C, D, E, F, G, H, I, J,K, L and M exhibited to it. Provisions of the subcontract which are particularly relevant to the issues arising on the Application are set out below.
[27]Exhibit C is a collection of subcontract schedules. Exhibit D is the General Conditions of Subcontract.
[28]Clause 3 of Exhibit D to the subcontract provides:
3NATURE OF SUBCONTRACT
3.1Performance and Payment
The Subcontractor shall execute and complete the work under the Subcontract;
Stork shall pay the Subcontractor;
(a)for work for which Stork accepted a lump sum, the lump sum;
(b)for work for which Stork accepted rates, the sum ascertained by measurement and determination of the quantities in accordance with Clause 3.2 and multiplying the quantity so measured and determined of each section or item of work carried out under the Subcontract by the rate accepted by Stork for the section or item adjusted by any additions or deductions made pursuant to the Subcontract
3.2 Quantities.
Quantities in a Bill of Quantities or Schedule of Rates are estimated quantities only.
A direction shall not be required to be given by Stork’s Representative by reason of the actual item required to perform the Subcontract being greater or less than the quantity shown in the Bill of Quantities or Schedule of Rates.
Unless otherwise stated within the contract, “actual quantities” shall mean those quantities measured in accordance with Australian Standard 1181-1982, as amended from time to time, from the lines, dimensions and limits shown on the relevant Contract plans and drawings.
Quantities over and above the actual quantities as a result of oversupply, over excavation or any other similar reason by the Subcontractor will not be included in the actual quantities and the Subcontractor agrees that Stork is not required to pay for these quantities over and above the actual quantities.
3.3Adjustment for Actual Quantities – Schedule of Rates
Where otherwise than by reason of a direction of Stork’s Representative to vary the work under the Subcontract, the actual quantity of an item required to perform the Subcontract is greater or less than the quantity shown in the Schedule of Rates;
(a)where Stork accepted a lump sum for the item, the difference shall be valued under clause 45.5 as if it were varied work directed by Stork’s Representative as a variation;
(b)where Stork accepted a rate for the item, the rate shall apply to greater or lesser quantities provided that where limits of accuracy are stated in the Annexure the rate shall apply to the greater or lesser quantities within the limits and quantities outside the limits shall be valued under Clause 45.5 as if they were varied work directed by Stork’s Representative as a variation.
If a Schedule of Rates omits an item which should have been included, the item shall be valued under Clause 45.5 as if it were extra work directed by Stork’s Representative as a variation
[29]Clause 2 of Exhibit C to the subcontract provides:
2.0Measurement for Payment
The Subcontractor shall execute the work under the Subcontract and fulfil all Subcontractors obligations there under, and Stork shall pay the subcontractor of the measured quantity of each item of the work performed under the Subcontract as certified by Stork at the appropriate rate in the Subcontract Schedule part A – “subcontract Price Schedule and Bill of Quantities”.
All items shall be measured net in-situ to the profiles and dimensions shown on the Drawings or described in the Scope of work and Specification and Subcontractor shall allow for wastage in the rates for the net quantities given in the Subcontract Schedule Part A – “Subcontract Price Schedule and Bill of Quantities”.
Upon issue by Stork of the `Approved for Construction’ Drawings for the work and prior to construction of work covered by the Drawings, Stork and Subcontractor shall jointly review the Drawings and agree on the rate items applicable to the work shown on the Drawings.
Measurement of work shall be made in accordance with the conditions set out hereunder.
2.1Civil Works.
2.1.1Excavation (General)
(a)The volume measured for the excavation of a structure or foundation shall be the volume which is to be either occupied by or vertically above any part of the structure or foundation, or in accordance with Clause 2.1.2 for drainage or culverts, and shall not include for working space or planking and strutting for structural excavation which shall be allowed for by the Subcontractor and included in the unit rate.
(b)All excavations have been given in cubic metres.
(c)Rates for excavations shall include for:
(i)Land or machine excavation as found expedient or required by the nature of the work or the prevailing Site conditions in any material encountered other than brick or concrete and whether above or below the ground water levels occurring at site.
Rippable rock is defined as rock that can be ripped out by a dozer of 300 kW engine power and matching single tooth hydraulic ripper at the rate of 25 m3/hour solid or more and shall include boulders up to 0.8 m3 in volume or boulders that can be picked out and removed without further breaking up.
Solid rock is defined as rock that cannot be ripped out as defined above or boulders that cannot be picked out without further breaking up, but requires to be broken up by rock breaker, jackhammer or other approved means.
(ii) Levelling and compacting bottoms of excavations where required by the Scope of Work, Specifications and Drawings.
(iii) Increase or decrease in bulk material
(iv) Keeping the excavations free from water by construction of temporary drainage ditches, pumping, bailing or any other method necessary to ensure that work can proceed at all times having particular regard to the Site water table
(v) Provision of water for structural requirements and for dust suppression.
(vi) Trim, prepare and hand dig bottom of excavations as necessary.
(vii) Removal of surplus excavated material from Site, unless otherwise specified.
(d)Where excavations are in or adjacent to roads or structure the rates shall include all measures required to maintain the structural integrity of the excavated face.
[30]Clause 45 of Exhibit D to the subcontract deals with variations:
45VARIATIONS
45.1Stork’s Representative may direct the Subcontractor to:
(a)increase, decrease or omit any part of the work under the Subcontract
(b)change the character or quality of any material or work;
(c)change the levels, lines, positions or dimensions of any part of the work under the Subcontract;
(d)execute additional work; and/or
(e)demolish or remove material or work no longer required by Stork.
The Subcontractor shall not vary the work under the Subcontract except as directed by Stork’s Representative or approved in writing by Stork’s Representative under Clause 45.
The Subcontractor is bound only to execute as variation directed rectification work referred to in Clause 42.
45.2Proposed Variations
Upon receipt of a notice in writing from Stork’s Representative advising the Subcontractor of a proposed variation under Clause 45, the Subcontractor shall advise Stork’s Representative, in writing within 5 days, whether the proposed variation can be effected. If the variation can be effected, the Subcontractor shall;
(a)advise Stork’s Representative of the effect which the Subcontractor anticipates that the variation will have on the construction program and time for Substantial Completion; and
(b)provide an estimate of the cost (including delay costs, if any) of the proposed variation.
Stork shall reimburse the Subcontractor for the reasonable costs of complying with the requirements of Clause 45.2.
45.3 Pricing the Variation
Unless Stork’s Representative and the Subcontractor agree upon the price for a variation, the variation directed or approved by Stork’s Representative under Clause 45.1 shall be valued under Clause 45.5.
Stork’s Representative may direct the Subcontractor to provide a detailed quotation of the work of a variation supported by measurements or other evidence of cost.
45.4Variations for the Convenience of the Subcontractor
If the Subcontractor requests Stork’s Representative to approve a variation for the convenience of the Subcontractor, Stork’s Representative may do so in writing. The approval may be conditional.
Unless Stork’s Representative otherwise directs in the notice approving the variation, the Subcontractor shall not be entitled to
(a)an extension of time for Substantial Completion; or
(b)extra payment;
in respect of the variation or anything arising out of the variation which would not have arisen had the variation not been approved.
Stork’s Representative shall not be obliged to approve a variation for the convenience of the Subcontractor.
45.5Valuation
Where the Subcontract provides that a valuation shall be made under Clause 45.5, Stork shall pay or allow the Subcontractor, or the Subcontractor shall pay or allow Stork, as the case may require, an amount ascertained by Stork’s Representative as follows:
(a)if the Subcontract prescribes specific rates or prices to be applied in determining the value, those rates or prices shall be used;
(b)if Clause 45.5(a) does not apply, the rates or prices in a Priced Bill of Quantities or Schedule of Rates shall be used to the extent that it is reasonable to use them;
(c)to the extent that neither Clause 45.5(a) or 45.5(b) apply, reasonable rates or prices shall be used in any valuation made by Stork’s Representative;
(d)in determining the deduction to be made for work which is taken out of the Subcontract, the deduction shall include a reasonable amount for profit and overheads;
[31]Finally, Exhibit D provides:
16LEGISLATIVE REQUIREMENTS
16.1 Complying with Legislative Requirements
Subcontractor must at all times comply with all Legislative Requirements, and is responsible for obtaining all necessary approvals and consents to enable the Works to be constructed.
For the purpose of this contact, Legislative Requirements includes the following requirements;
(a)Acts of the Commonwealth;
(b)Acts and Ordinances of the State or Territory in which the work under the Subcontract or any part thereof is carried out;
(c)Ordinances, regulations, by-laws, orders and proclamations under the Acts and Ordinances;
(d)Persons acting in the exercise of statutory powers enabling them to give directions affecting the work under the subcontract.
Legislative Requirements includes:
(a)Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth and the State or Territory in which work under the Subcontract or any part thereof is being carried out;
(b)Certificates, licences, consents, permits, approvals and requirements of government or local government organisations having jurisdiction in connection with the carrying out of the work under the Subcontract;
(c) Fees and charges payable in connection with the foregoing and which are generally applicable in the State of Queensland or the shire of Banana;
[32]The plaintiff’s claims are largely for work done under the contract. It is not however clear if some claims are for work outside the subcontract. If they are, the plaintiff must identify them and plead the basis of justification for payment.
[33]The plaintiff must identify the contractual provisions under which the claim is made including, for example, those by which the quantities and rates claimed are set. It must also plead facts establishing that the contractual requirements for payment have been complied with.
[34]Some claims are for variations. The subcontract (cl 45.2 of Exhibit D) provides to the effect that on receiving a notice of proposed variation the plaintiff is to advise whether it could be effected. If it can the plaintiff is to advise of any effect on the progress of the contract and provide an estimate of the cost (including any delay costs) of the proposed variation.
[35]The clause concludes by providing that the defendant will reimburse the plaintiff for the “reasonable costs of complying with the requirements of cl 45.2”. In my view, this reference does not refer to the cost of carrying out of the variation itself. I mention this because where the Statement of Claim refers to “reasonable” costs it cannot be referrable to this clause and the basis for each reasonable cost claim must be pleaded.
[36]The pricing of variations is provided for by cl 45.3. This provides that in the absence of agreement “upon the price of the variation” it is to be valued under cl 45.5. If agreement is relied on, it seems it is not in most cases, it must be pleaded.
[37]Clause 45.5 provides that the defendant is to pay an amount ascertained by its representative on the following basis:
(a)if the subcontract prescribes specific rates or prices they are to be used;
(b)if it does not the rates or prices on a priced bill of quantity of schedule of rates are to be used to the extent to which it is reasonable;
(c)if neither (a) nor (b) applies reasonable rates or prices are to be used.
In other words, “reasonable rates” are payable only when (a) or (b) do not apply. If the plaintiff is suing for an amount ascertained by the defendant’s representative it must plead and particularise that. If the plaintiff does not accept that an ascertainment is appropriate it must plead and particularise that basis for that contention. If there is no “ascertained” amount the plaintiff must plead and particularise the basis for the claim notwithstanding there is no “ascertained” amount.
[38]The subcontract (cl 2 of Exhibit C) provides as to measurement for payment for work done under the subcontract. Put shortly, payment is for work “measured in-situ” to the profiles and dimensions shown in the relevant “Drawings or described in the Scope of Work and Specification”.
[39]It is essential, for example, that the plaintiff gives sufficient particulars to enable the defendant to investigate whether the quantities claimed are “actual quantities” in terms of cl 3.1 of Exhibit D to the subcontract. The defendant is not, for example, required to pay for excavation over and above “actual quantities”.
[40]In terms of determining quantity, the relevant considerations are those in cl 2 of Exhibit C. For the purposes of pleading the claim the plaintiff must identify, for example, the “Drawings” on the “Approved for construction Drawings” referred to in the clause. It is not sufficient, for example, to identify documents calculating the quantities actually excavated or claimed on plans and drawings referred to, those quantities or their calculation.”
[11] It is argued for the defendant that the decision of Moynihan SJA determined that the proper construction of the subcontract requires that the plaintiff cannot rely upon drawings other than for-construction drawings or the calculation of quantities derived from such drawings for the purposes of establishing the quantity of work performed by it so as to give rise to an entitlement to payment under the subcontract. As a result, it is submitted, an issue estoppel arises and the plaintiff is precluded from amending its pleading and from arguing to the contrary of Moynihan SJA’s decision.
[12] Whether an issue estoppel can arise out of an interlocutory decision and, if so, under what conditions, has been the subject of recent consideration in the Court of Appeal. In Castillon v P&O Ports Ltd [2007] QCA 364, Holmes JA (with whom Wilson J agreed) examined the relevant decisions touching upon this issue. She said:
“[49] The fact that a determination is made in the course of interlocutory proceedings is not conclusive of whether it may give rise to an issue estoppel. The seminal statement of the law relating to issue estoppel is that made by Dixon J in Blair v Curran (1939) 62 CLR 464):
‘A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.’ (At 531-532)
[50] Issue estoppel in an interlocutory context was raised and discussed in the Carl Zeiss Stiftung v Rayner & Keeler Ltd decisions, in a series of applications in the English courts, concerning, at least in part, an East German council’s authority to instruct solicitors on the plaintiff’s behalf. In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)( [1967] 1 AC 853 at 935) Lord Guest identified the requirements of issue estoppel:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final, and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
(A formulation adopted by the High Court in Kuligowski v Metrobus). ((2004) 220 CLR 363 at 373)
[51] Lord Guest expanded on the quality of finality: it meant “final and conclusive on the merits”([1967] 1 AC 853 at 935). In the case before the House of Lords, the appeal was, ultimately, from a decision of Cross J, dismissing a summons to stay proceedings and holding that the council was the proper body to authorise the plaintiff’s passing off action. The question was raised as to whether an earlier decision by a West German court in an action seeking restraining orders, that the council lacked authority to represent the plaintiff, created an estoppel. The plaintiff was entitled, Lord Guest said, to raise a change of circumstances affecting its capacity to sue; the West German decision was therefore not final and conclusive.
[52] In Carl Zeiss Stiftung v Rayner & Keeler Ltd & Others (No 3), ([1969] 3 All ER 897) the question had evolved; it was now whether the decision of Cross J affirming the council’s capacity to give instructions on the plaintiff’s behalf created an issue estoppel. Buckley J distinguished between an interlocutory order which involves no final decision of any issue, because something remains to be determined before the decision is effected or because it is subject to alteration by the court or tribunal making it (as, for example, an interim injunction); and a decision which, although interlocutory, is final and binding. (At 910). To the extent that it concerned the authorisation of the plaintiff’s action, the relevant determination did have the necessary final and binding quality; the defendants could not have sought another stay of the action on that ground and they conceded as much; but it did not bear directly on the issues raised by the litigation before Buckley J so as to give rise to an estoppel.
[53] The second of Buckley J’s indicators of lack of finality, that the decision is subject to subsequent alteration, begs the question of how one determines what decisions may be revisited. It shares the circularity which bedevils attempts in many of the authorities to articulate when a decision possesses the necessary finality to create an issue estoppel: if a further application may be made, the decision is not final, but whether a further application may be made depends on whether an issue estoppel arises.
[54] Lord Guest’s tripartite test was applied by the House of Lords in “The Sennar” (No 2), ([1985] 2 All ER 104) with some further consideration of what constituted a decision “on the merits” in the context of issue estoppel:
‘a decision on the merits is a decision which establishes certain facts proved or not in dispute, states what are the relevant principles of law applicable to such facts and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned.’ (At 111).
On those criteria, a Dutch Court of Appeal’s decision that an exclusive jurisdiction clause in a bill of lading applied to the appellants’ claim, although procedural insofar as it was a decision concerning that court’s jurisdiction, was nonetheless a decision on the merits. It created an issue estoppel which barred the appellants from proceeding in an English court.
[55] Closer to home, the New Zealand Court of Appeal, in Joseph Lynch Land Co Ltd v Lynch ([1995] 1 NZLR 37) accepted, at least in principle, that an interlocutory judgment could found a subsequent issue estoppel; the question was,
“concerned not so much with the character of the earlier decision, ie whether it should be regarded as final or interlocutory . . .[but] rather whether in the circumstances it is reasonable to regard the earlier decision as a final determination of the issue which one of the parties now wishes to raise.” (At 43)
That said, the Court urged caution in coming to the conclusion that an estoppel had been created by a decision given in an interlocutory context.
[56] In Makhoul v Barnes ((1995) 60 FCR 572) the full Federal Court described as “too broadly expressed” the proposition (expressed by a single judge in an earlier decision) that the determination of an issue determined in interlocutory proceedings could not give rise to an issue estoppel. The Court referred to Carl Zeiss Stiftung (No 3) and Joseph Lynch Land Co as indicating that the correct approach was to consider whether the earlier decision ought to be regarded as a final determination of the issue, rather than focussing on the nature of the proceedings. (At 583)
[57] In Santos v Delhi Petroleum Pty Ltd ([2002] SASC 272) Lander J, with whom the other members of the South Australian Full Court agreed, considered the question. It was relevant, but not decisive, his Honour said, that the decision was made in an interlocutory application. The question must be answered:
‘[not] by reference to whether the application is interlocutory or otherwise but by reference to the order itself and whether it amounts to a final determination such that it is not only impractical to bring the issue before the court but impermissible.’ (At para [400])
An issue resolved on an interlocutory application could, if it finally determined the issue between the parties, give rise to an issue estoppel. That view was cited with approval by the New South Wales Court of Appeal in Inasmuch Community Inc v Bright. ([2006] NSWCA 99 at [60])
[58] Decisions made for the purpose of determining whether an order is final rather than interlocutory so as to give a right of appeal are not, as Handley JA, writing extra-curially has pointed out, (Handley K, “Res Judicata: General Principles and Recent Developments” (1999) 18(3) Aust Bar Rev 214) necessarily of assistance. As much can be seen from the rationale given in Carr v Finance Corporation of Australia Ltd (No 1) ((1981) 147 CLR 246 at 248) for the approach taken in that context. Gibbs CJ observed that the test in Licul v Corney, ((1976) 180 CLR 213) of whether the judgment or order appealed from finally determined the rights of the parties, required the court to have regard to the legal, as opposed to the practical, effect of the judgment. Otherwise uncertainty would result, and in some instances the court would have to investigate the facts and the course of the proceeding in order to determine the practical effect of the order;
‘an inquiry quite inappropriate when the only issue is whether a right of appeal exists.’ ((1981) 147 CLR 246 at 248)
Mason J similarly regarded the disadvantage of having to undertake
‘an examination of the grounds on which the application to set aside was made, the grounds on which it was refused and the formation of a judgment as to the impact of the grounds of refusal on the prospects of bringing a second application’ (At 256)
as militating against such an approach to classification in determining whether an appeal lay as of right. But such an exercise is, in contrast, appropriate in determining whether an issue estoppel exists; then, it is necessary to consider precisely what was decided and its actual effect in binding the parties.”
[13] I do not accept that the decision of Moynihan SJA falls into any of the categories which will support an issue estoppel. It was not necessary for Moynihan SJA to decide what the proper construction of the relevant part of the contract was and I do not, on a careful examination of his reasons, find that he did make any such decision as to the proper construction of the relevant clauses.
[14] In [38] of his reasons he refers to the subcontract providing as to the measurement for payment for work done under the subcontract. He said:
“Put shortly, payment is for work ‘measured in-situ’ to the profiles and dimensions shown in the relevant ‘Drawings or described in the Scope of Work and Specification’.”
[15] His Honour then goes on to say that it is essential that the plaintiff give sufficient particulars to enable the defendant to investigate whether the quantities claimed are “actual quantities” in the terms of the subcontract. Further, he said, that “In terms of determining quantity, the relevant considerations are those in cl 2 of Exhibit C.” His Honour did not, in my view of what he said, set out a complete exposition of the meaning of clause 2 of Exhibit “C” to the subcontract. His Honour does not, for example, say that a pleading on this part of the action cannot refer to matters other than the “approved for construction drawings”. He says, rather, that such a pleading must identify those drawings but he does not go on to say that there is a particular limit. In my view that is because his Honour was not attempting to set out a concluded view as to the proper construction of the relevant parts of the subcontract.
The history of the litigation, the lateness of the amendments, a change in case and the failure to explain
[16] The matters referred to in the above subheading are all matters upon which the defendant is entitled to make strong complaint about the conduct of the plaintiff.
[17] The plaintiff has known since, at least, 2005 that the defendant’s case was, on this part of the claim, that the material pleaded by the plaintiff did not allow for the necessary calculations to be done to determine the relevant quantities. The defendant has not made a secret of that and has consistently attacked the statement of claim in this respect on that basis.
[18] Reference was made to an order of Byrne J made on 12 July 2005 concerning the statement of claim. So far as is relevant that order provided:
“In relation to paragraph 6, 17, 30, 54, 79, 124 and 193 of the draft statement of claim, the Plaintiff file and serve, as soon as possible, but in any event within 45 days, particulars of the profiles and dimensions relied upon it as the basis for the calculation of each of the quantities alleged and each of those paragraphs by reference to each for-construction drawing from which each of the measured profiles and dimensions were taken.”
[19] It was submitted by Mr Digby QC that the court “had in that respect prescribed the way in which it required those particulars to be put forward”, namely only the provision of particulars of the for-construction drawings to which the quantities have been measured, and that there was “something of a prohibition upon referring to or relying upon any other drawing than the for-construction drawing”.
[20] Justice Byrne’s order, set out above, does not restrict the plaintiff in how it may plead its case. As with Moynihan SJA’s reasons, referred to above, the order of Byrne J provides the minimum which is required for the pleading. It does not, in any sense, purport to restrict the plaintiff in the proper provision of particulars beyond those set out in the order.
[21] I was referred to a number of cases by both parties. The most well known decision of them is State of Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146. The plaintiff relied on the often cited passages in the joint reasons of Dawson, Gaudron and McHugh JJ where they said:
“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
[22] As this is a case in which both parties are corporations and the dispute is over a substantial building project what their Honours said at 154-155 is also relevant:
“The majority in the Full Court considered that costs are not these days considered the "healing medicine" they once were. They referred to the speech of Lord Griffiths in Ketteman v Hansel Properties Ltd … and the decision of this Court in The Commonwealth v Verwayen … . In Ketteman Lord Griffiths said [at 220]:
"justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes ... "
In this case, which is of a commercial nature, the litigants are on the one side a developer and on the other side government, and there is nothing which would indicate any personal strain which would justify the conclusion that costs are not an adequate remedy for prejudice caused by the amendment sought to the pleadings.”
[23] And further, at 155:
“Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.”
[24] This trial was on the Supervised Case List of this court. The Practice Direction governing the conduct of cases on that list (No. 6 of 2000) provides for the making of directions for the conduct of interlocutory steps. Clause 15 of the Practice Direction provides:
15. Non-compliance with a direction may, on the application of a party or on the court's own motion, result in:
●an order pursuant to rule 371(2);
●a non-complying party being deprived of the costs of late compliance;
●a non-complying party may be ordered to pay the other party's costs thrown away by non-compliance which may be fixed and payable forthwith;
●the non-complying party may be ordered to pay as a sanction an administration charge of $75.00;
●the Supervised List Manager may be directed to write directly to the non-complying party informing that party of the non-compliance and any orders made in respect of it;
●the matter may be listed for trial notwithstanding non-compliance.
[25] It has become clear, during the conduct of this trial, that the plaintiff has ignored many of the directions given during the reviews conducted pursuant to the Practice Direction.
[26] The failure to comply with directions, together with other matters (late disclosure, late supply of expert’s reports), has understandably frustrated the defendant in defence of the claim and in the pursuit of its defence and counterclaim. Nevertheless, the application is one which can be dealt with by the defendant (no prejudice was asserted), but it is made against a history which justifies an order for costs on an indemnity basis.
[27] The plaintiff has leave to amend its statement of claim in the manner sought. It must pay the costs of the defendant thrown away by the defendant to be assessed on an indemnity basis.