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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited  QSC 86
ALEXANDERSON EARTHMOVER PTY LTD ABN 98 100 496 937
CIVIL MINING & CONSTRUCTION PTY LIMITED ABN 18 102 557 175
BS 13314 of 2017
Supreme Court at Brisbane
29 April 2021
27 November 2020
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY –– where a previous strike out application had been brought – where orders were made to strike out parts of the pleadings – where the plaintiff re-pleaded aspects of the struck out pleadings – whether leave for the plaintiff to file and serve a Fifth Amended Statement of Claim should be refused – whether the plaintiff’s pleading remains deficient – whether particulars pleaded are relevant pre-contractual negotiations and factual matters relevant to identifying the surrounding circumstances of the transaction or extrinsic facts relevant to resolving ambiguity
Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited  QSC 122, cited
Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited  QSC 259, cited
Australasian Medical Insurance Ltd & Anor v CGU Insurance Ltd (2010) 271 ALR 142, cited
Barr Rock Pty Ltd v Blast Ice Cream Pty Ltd  QCA 252, cited
Birbilis Bros Pty Ltd v Chubb Fire and Security Pty Ltd & Ors  QSC 3, cited
Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82, cited
BP Australia Pty Ltd v Nyran Pty Ltd (2003) 198 ALR 44, cited
BP Australia Pty Ltd v Nyran Pty Ltd  FCAFC 163, cited
Built Environs WA Pty Ltd v Perth Airport (No 4)  WASC 382, cited
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, cited
DM Drainage & Constructions Pty Ltd (as trustee for DM Unit Trust t/as DM Civil) v Karara Mining Pty Ltd  WASC 170, cited
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, cited
Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd & Anor  QSC 163, cited
John Doyle Construction Ltd v Laing Management (Scotland) Ltd  BLR 295, cited
John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 8 VR 681, cited
LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200  QSC 229, cited
McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd  QSC 178, cited
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2015) 256 CLR 104, cited
Partenreederei M.S Karen Oltmann v Scarsdale Shipping Co Ltd  2 Lloyd’s Rep 708, cited
Santos Ltd v Fluor Australia Pty Ltd  QSC 153, cited
Southern Cross Mine Management Pty Ltd v Enshan Resources Pty Ltd & Ors  QSC 457, cited
Terravision Pty Ltd v Black Box Control Pty Ltd (No 2)  WASC 66, cited
M D Ambrose QC and C H Matthews for the Plaintiff
L Campbell for the Defendant
Frigo Adamson Legal Group Pty Ltd for the Plaintiff
Clayton Utz for the Defendant
- The Plaintiff seeks leave to file and serve the Fifth Amended Statement of Claim. Leave is opposed by the Defendant. The Plaintiff contends that it has now repleaded its case to address deficiencies previously identified in earlier strike out claims. In particular, the Plaintiff contends that it has pleaded a conventional case in relation to causation, rather than a global claim, where it was previously found there were global elements in the previous claims.
- The question of whether or not leave should be refused is determined on the basis of whether or not the pleading or allegations in question would be liable to be struck out. The onus, however, falls on the Plaintiff to persuade the Court that leave should be given.
- The Fifth Amended Statement of Claim (5FASOC) has been amended significantly since I previously considered a strike out application by the Defendant. The Defendant, however, contends that the 5FASOC remains deficient and leave should be refused because of deficiencies in:
- (a)the allegations of prior negotiations said to form the “pre-contract factual matrix” against which the executed contract should be construed;
- (b)the reliance on draft contracts exchanged during negotiations;
- (c)the Plaintiff’s claims for standby and access delay which are still pleaded as global claims and are objectively ambiguous;
- (d)the particulars of standby and productivity that have been provided in the Productivity and Standby Schedule, which is described as an excessively large, complex and confusing spreadsheet to the draft 5FASOC;
- (e)the claims for delayed completion which remain pleaded as global claims; and
- (f)Labour and supervision damages claims which remain global claims.
- There are a number of complaints outlined by the Defendant in each category.
- In determining whether leave for the draft 5FASOC should be given or refused I am conscious of the fact that the Court must determine whether the pleading fulfils its basic function of identifying issues, disclosing an arguable cause of action and apprising the defendant of the case it has to meet, rather than whether it complies with all technical pleading rules. That said, a defendant is entitled to have a properly pleaded case to which it can respond and which will not cause undue prejudice, cost or delay through the parties being distracted by irrelevant allegations, or by not being able to identify the case it must meet. The present case is case managed which may be relevant to the exercise of the Court’s discretion, as well as the fact that a case such as the present will be subject to directions where the relevant evidence and issues should be identified well in advance of trial. For the purposes of this application, the Court assumes the facts pleaded to be true.
- I will not repeat the background of this matter in relation to previous strikeout applications. While the interlocutory background has some relevance to the present application, I am conscious of the fact that the draft 5FASOC must be judged according to its terms and whether it discloses a reasonable cause of action, not whether there are more conventional ways it could have been pleaded. I will address each of the areas of complaint in turn.
Plaintiff’s reliance on prior negotiations and draft contracts
- The Defendant complains that the Plaintiff has pleaded a myriad of negotiations between the parties in the months leading up to the parties executing the contract (being the contract between the parties dated as being 13 October 2011 (the Contract)) as particulars in paragraph 8 of the draft 5FASOC. These had previously been included as relevant to an allegation of an antecedent agreement which has now been abandoned. The Defendant claims the majority of negotiations pleaded are irrelevant and would be inadmissible at trial.
- The Plaintiff contends that the particulars pleaded in paragraph 8 of the draft 5FASOC are relevant pre-contractual negotiations and factual matters leading up to the entry into the written terms of the Contract, which have been pleaded in detail to ensure that the Defendant is not taken by surprise. It contends that the matters pleaded are relevant on two bases:
- (a)as part of the pre-contractual factual matrix identifying the surrounding circumstances of the transaction, which are relevant to the commercial context, purpose and object as known to the parties; or
- (b)as pre-contractual matters which are extrinsic facts, which are relevant to resolving ambiguity in the meaning of the terms of the Contract or the choice of a “constructional choice.”
- In its supplementary submissions provided after the oral hearing, the Plaintiff accepted that the following paragraphs in the 5FASOC are not relevant to the issue of a particular objective fact: 8(a), 8(f), 8(i), 8(o)-(v)(inclusive), 8(x) and 8(y). The Plaintiff however submits that other particulars do give rise to objective facts that are relevant to the construction of the Contract, notwithstanding that they were the subject of pre-contractual negotiations.
- The Plaintiff, in particular, relies on a number of matters arising out of pre-contractual negotiations as constituting extrinsic facts relevant to construing “sufficient access,” which is an undefined term in the Contract, or on the basis they are relevant to the commercial purpose of the Contract.
- The Defendant contends that the myriad of prior negotiations are not evidence of the “factual matrix” or “surrounding circumstances,” but evidence of the antecedent oral and written negotiations which exhibit the actual intentions and expectations of the parties expressed during those negotiations. The Defendant contends that there is no pleading of mutual intention or concurrence as to what would be “sufficient access,” such that they could be admissible.
- The Plaintiff submits that, although the particulars of the negotiations in paragraph 8 are pleaded in a narrative style, some objective background facts may be found in the parties’ actual mutual intention, from the following:
- (a)Paragraphs 8(b) and (c) – The Defendant’s Tender Extract included quantities and haul distances that could only be achieved with access across Beales Creek. That was the basis upon which the Defendant undertook to do the work with the principal (being its tender) and the basis on which it is alleged to have asked the Plaintiff to match paragraph 8(e)(3). The relevant objective fact is the tender distance or distances identified over which the material was to be hauled.
- (b)Paragraph 8(d) provides context of the meeting referred to in paragraph 8(e).
- (c)Paragraph 8(e) is relevant to the genesis or aim of the Contract. Further, it evidences an objective fact known to the parties that the access points and crossings referred to did not then exist and the distances identified in the Defendant’s Tender Extract could not be achieved until they were provided.
- (d)Paragraph 8(g) provides for mutually known background facts regarding the manner in which the work was to be carried out, including access points and crossings. The objective facts were:
- that the Pyealy and Beales Creek crossings were required to meet the OLC distances in the Tender Extract;
- that haul roads were required to carry out the work;
- there would be three access points from the GPN Borrow Source to the Bunds;
- none of the matters in (i), (ii) and (iii) were in existence at that time; and
- none of the above subparagraphs would form part of the Plaintiff’s works.
- (e)Paragraph 8(j) pleads an objective fact known to both parties that the schedule of rates in Letter 1 were directly referrable to the relevant parts of the Tender Extract (paragraph 8(b) and (c)), including with respect to identified distances.
- (f)Paragraph 8(l) and (n) evidence objective facts known to the parties of the dates by which the relevant works were required to be completed under the Head Contract, including the end date of 20 March 2012.
- (g)Paragraph 8(w) evidences an objective fact that prior to the commencement date of the Contract (also being prior to its execution), the parties knew there would be delays with access to the site (also relevant to this issue are the particulars to paragraph 28N).
- The Defendant concedes that paragraph 8(e)(i)(2) and 8 (e)(ii)(2) could potentially be background objective facts. The Defendant however contends that the Plaintiff has failed to plead any fact from which “mutual concurrence,” may be inferred as to the haul distances or location of the haul roads, notwithstanding that the plaintiff by its supplementary submissions, seeks to contend that there was “actual mutual intention” as to how the work would be performed in very specific ways.
Relevant legal principles
- The legal principles in relation to extrinsic facts that may be relevant for the purpose of construing a contract or identifying its commercial purpose are not the subject of controversy between the parties for the purposes of this application. The controversy is whether the facts pleaded could be characterised as such extrinsic facts, so as to be arguably relevant.
- The Defendant contends that the allegations setting out pre-contractual negotiations are raising immaterial or irrelevant issues. In that regard, it contends the proper approach is that which was adopted in Terravision Pty Ltd v Black Box Control Pty Ltd (No 2). In that case Le Miere J stated:
“…Material is not struck out merely because it is irrelevant or unnecessary. However, irrelevant or unnecessary material may be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the action. Pleadings may be struck out on this ground because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general...”
- The scope for evidence of surrounding circumstances to be admitted in order to construe words of a contract, or identify the commercial purpose of a contract in the face of a detailed written contract, as in the present case, is naturally limited in the absence of a claim for rectification, estoppel or misrepresentation.
- Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW, stated that:
“…the evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning.”
- The majority of the High Court in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, at - described the process of construction to be adopted including that:
 Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
 However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
 Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.
- Pre-contractual negotiations have traditionally had a limited role in the interpretation of a written contract. They are generally superseded by, and merged into, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction.
- Mason J in Codelfa, stated that to the extent that prior negotiations have a tendency to establish objective facts, which were known to both parties and the subject matter of the contract, they are admissible. Evidence of mutual intention, if amounting to concurrence, may also be receivable to negate an inference sought to be drawn from surrounding circumstances. However, statements and actions of the parties which are reflective of their actual intentions and expectations are not admissible. An exception to this is where the parties have refused to include in the contract, a provision in the contract which would give effect to the presumed intention of persons in their position.
- Where parties are said to have agreed on the meaning of a word or phrase in prior negotiations, and share a mutual intention with respect to it, evidence of the concurrence and the intention is admissible on the question of what the word or phrase means. While objective facts can extend to statements or actions of the parties that reflect the mutual intention of the parties, the mere communication by one party to another of their subjective intention does not alone result in that subjective intention becoming a mutually known objective background fact.
- Surrounding circumstances known to the parties, and the commercial purpose or objects to be secured by the contract, may also be relevant and admissible in order to construe a commercial contract in order to avoid a result which could not have been intended. The surrounding circumstances may include facts which assist in identifying the purpose or object of the transaction. These may include its history, background and context, and the market in which the parties were operating.
- The question of leave for a pleading is not, however, determined on the basis of whether evidence of allegations of facts referred to in a pleading will ultimately be admissible. However, to the extent that evidence of the facts pleaded would be inadmissible and are not relevant to the construction of the contract, that may cause the Court to conclude that the allegations are irrelevant and have a tendency to delay or prejudice the trial. This was the approach adopted by Le Miere J in Terravision, in relation to some pre-contractual negotiations sought to be relied upon in the context a preliminary issue which was to be determined by the court in that case. While Le Miere J did determine the relevance of prior negotiations to the proper construction of a written contract in a strike-out application, the context in which it was decided was of relevance to the making such a determination at a preliminary stage.
Are the prior negotiations relevant?
- Paragraph 8 of draft 5FASOC pleads that:
“Between mid-August 2011 and on or about 13 October 2011, the plaintiff and the defendant entered into negotiations in anticipation of entering into a written contract of the purposes of undertaking work at the Subject Property.”
- Various steps in the negotiations are then pleaded by way of particulars. It is not expressly pleaded that the matters pleaded were objective facts known to both parties, nor that the statements pleaded reflected the mutual intention of parties, although it was asserted that some are relevant on that basis, as well as to the commercial purpose of the contract. The fact it is pleaded in a narrative form, while perhaps thought to be helpful from the point of view of providing a chronology, tends to obscure the objective facts sought to be relied upon. The more appropriate form of pleading would have been to have pleaded the objective background facts known by both parties and which were the subject of mutual concurrence, or those facts said to be relevant to purpose and object of a transaction, and for the negotiations to be pleaded as particulars relevant to each of the matters relied upon.
- I will not consider 8(a),(f),8(i),8(o)-(v) inclusive, 8(x) or 8(y) of the 5FASOC on the basis that the Plaintiff accepts that those paragraphs are not relevant to the issue of a particular objective fact, and has not contended they are relevant in identifying the commercial purpose or to the context of the contract. I will therefore not grant leave in respect of those paragraphs of the draft 5FASOC.
- The Plaintiff contends that the remaining particulars of prior negotiations may be admissible on the basis that they establish objective background facts known to both parties, consistent with Mason J’s authoritative statements in Codelfa. The Plaintiff appears to rely on the negotiations as being relevant to what it contends the Contract provided in relation to haulage and the meaning of “sufficient access.” The Defendant contends that the negotiations do not give rise to objectively known facts even aside from the fact that the Plaintiff does not plead “mutual concurrence”.
- Paragraphs 8(b) and (c) refer to the Defendant’s Tender Extract which relate to the Head Contract, which was provided by the Defendant to the Plaintiff. The Plaintiff contends that the Tender Extract included quantities and haul distances to be part of the work for which the Defendant sought to engage the Plaintiff. Paragraph 8(c) pleads that the extract includes haul distances that could only be achieved with access across Beales Creek. Assuming the allegation that the Tender Extract was provided by the Defendant to the Plaintiff to identify the work which the Plaintiff was to carry out is established, the Tender Extract could constitute an objective fact known to both parties. However, the Plaintiff would have to show that it somehow reflects a mutual intention of the parties in relation to this contract. The Plaintiff relies upon the Tender Extract as relevant to the construction of the phrase “sufficient access.” Paragraph 8(c) identifies a particular part of the Tender Extract sought to be relied upon by the Plaintiff, which is said to demonstrate that a haul crossing over Beales Creek was necessary to achieve the quantities and haul distances. There is no express term in the Contract specifying the location of any haul roads or how the work in the Schedule Rates would be performed, which operates to exclude a contention that the Tender Extract may contain facts in common contemplation by the parties and a basis of negotiations. Insofar as the access routes have not been specified in the Contract, and the work to be performed by the Plaintiff was part of the work provided for under the Head Contract, the Tender Extract may be relevant as an objective fact in determining the meaning of “sufficient access” if the relevant preconditions can be established by the Plaintiff. Given it is alleged the Tender Extract related to the work the Plaintiff was to carry out for the Defendant, it may also be relevant to the commercial object and purpose of the Contract. I am not persuaded that it is inarguable that it may be an objective background fact relevant to the construction of “sufficient access,” nor that its inclusion would have a tendency to delay or prejudice the trial. I do not consider that leave should be refused in relation to the allegation.
- As to paragraphs 8(d) and 8 (e), paragraph 8(d) provides no more than some details and the context of the meeting pleaded in paragraph 8(e). It is of no consequence to the trial of the matter. Paragraph 8(e) is relied upon by the Plaintiff as being relevant to the genesis or aim of the Contract, and to an objective fact that the access points and crossings referred to did not exist at that time. It is further said that it is relevant to an objective fact that the distances identified in the Defendant’s Tender Extract could not be achieved until the access was provided.
- Paragraph 8(e) pleads matters that were discussed by the representative of the Plaintiff and Defendant at the meeting and the provision of an overview of the project and drawing and the location of planned works. The Defendant accepts 8(e)(i)(2) and (ii)(2) may be objective background facts, but contends the balance of what was said at the meeting by Mr Semmler reflected the Defendant’s subjective intentions as to how the objective of the Contract could be achieved, rather than the genesis and aim of the Contract.
- The Contract does not specify the location of any intended haul roads or how the work identified in the Schedule of Rates was to be performed. The objective fact that the access points and crossings did not exist could arguably be a relevant background fact as to the Contract. While specific roads were described by the Defendant’s representative, those roads appear to be no more than an expressed subjective intention, unless it was a matter adopted by both parties, and the subject of the parties mutual intention (which has not been pleaded). The nature of the roads discussed and the Tender Extract may arguably be relevant to the meaning of “sufficient access,” or at least to the genesis and aim of the Contract insofar as the discussions addressed the type of access, if it was mutually adopted by the parties. In such circumstances, it may be an objective fact relevant to the genesis and aim of the Contract in construing “sufficient access.” While the Defendant submits that the objective facts of the genesis and aim of a transaction may be admitted to show the attribution of a strict legal meaning would make the transaction futile, the authorities seem to approach a broader approach. However, before resort can be had to extrinsic evidence, there needs to be ambiguity in the meaning of the words to be construed. The majority in Electricity Generation Corporation v Woodside Energy Ltd, found that the meaning of a term would require “…consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secure by the contract,” and such an appreciation is facilitated by an understanding of “the genesis of the transaction, the background, the context and the market in which the parties are operating.” Arguably, the phrase “sufficient access” is ambiguous. The basis upon which the Plaintiff seeks to rely upon those matters has been identified and is arguably relevant. Whether the Plaintiff will ultimately be successful at trial in establishing the basis upon which it contends the matters are admissible when the question of construction of the contract is properly ventilated is, however, another matter.
- As to paragraph 8(g), the Plaintiff contends that it identifies mutually known background facts as to the manner in which the work was to be carried out, including access points and crossings. The exchange occurred in the context of it being a response to an enquiry of a Plaintiff’s representative as to the scope of the work that the Defendant was seeking to have the Plaintiff perform. The Defendant contends that they are assertions of “objective facts” that the schedule of works would only be performed in a particular way and are not a matter of mutual concurrence. It contends the Plaintiff fails to distinguish between the negotiations regarding how the work was to be performed, and truly objective facts. It contends that the negotiations were only reflective of subjective intentions in the context of the Head Contract not having been awarded. The Plaintiff does not plead that the matters referred to were expressly adopted by both parties, but it does however plead that those matters were identified by the Defendant in the context of it clarifying the scope of works. In that context, it is possible that they may be mutually known background facts relevant to the construction of the Contract, although not as contractual terms. The basis upon which the Plaintiff seeks to rely on the exchange is arguably relevant.
- Paragraph 8(j) is said to be a mutually known fact by the Defendant and Plaintiff. The fact that it was an objective fact known to both parties may be inferred from the fact the Tender Extract was provided to the Plaintiff and at least relevant to the genesis and aim of the Contract, given the schedule of rates replicates the rates in the Tender Extract circumstances. It is tenuous, but I am not satisfied it is inarguable that it may be relevant and established to be an objective fact known to the parties.
- Paragraphs 8(l) and (n) are said to be objective facts known to both parties by which the relevant works were required to be completed under the Head Contract, which were replicated in the Contract, the subject of these proceedings. The fact that it was an objective fact known to both parties may be inferred from the circumstances even though it has not been expressly pleaded. It is arguable that it has relevance to the genesis of the present transaction. I am not satisfied it is inarguable that the allegations may be admissible in accordance with established principle.
- While accepting that the circumstances in which prior negotiations will be admissible in relation to the construction of the Contract are limited, I consider that the Plaintiff has an arguable case for relying on the prior negotiations referred to above, insofar as they are a basis for inferring the existence of a mutually known fact, which may have been the subject of mutual concurrence, or as relevant to the genesis and aim of the contract or in identifying mutually known facts relevant to the meaning of a descriptive term which is ambiguous. The Plaintiff should identify the objective facts which it contends were mutually known in relation to the particular prior negotiations. Given it has identified the objective facts said to mutually known in its supplementary submissions, that should not be a difficult process.
- In regard to paragraph 8(w), the Defendant accepts that w(i) and (ii) may concern the communication of objective facts, but states that (iii) concerns an irrelevant step in the negotiations. I find that (iii) is an irrelevant allegation and is liable to be struck out. It has not been contended by the Plaintiff that the position is otherwise.
- The Defendant complains that the reference in paragraph 28N to “and in course of giving the aforesaid instruction indicated that the defendant would pay the plaintiff for plant and equipment not able to be utilised on standby rates” and further what is pleaded as an observation by the Defendant as to the state of readiness by the Defendant in subparagraph 28N(c) is irrelevant. No collateral agreement, estoppel or quantum meruit claim is relied upon by the Plaintiff. The allegation that the Defendant stated the Defendant would pay the Plaintiff for the plant and equipment is therefore irrelevant. Further the observation of the Defendant is not relevant to the allegation and as such is not a particular of the allegation. The allegation is irrelevant and is liable to be struck out.
- Leave should not be granted for paragraph 8(w)(iii) of the particulars, the paragraphs in the particulars referred to in paragraph 26 above, or the matters in 28N identified above in the draft 5FASOC. Subject to the Plaintiff amending the draft 5FASOC to identify the objective fact, and the basis upon which it is inferred it was mutually known or adopted by the parties as an objective fact, I will grant leave for the above paragraphs to be maintained.
Draft contracts – 9 (c)
- The Defendant also contends that paragraph 9 is defective, in impermissibly particularising various drafts of the Contract in pleading the date of entry into the Contract. The Defendant contends that other than the final draft contract which was sent for execution by the Defendant, the previous drafts are irrelevant.
- As to the pleading of the exchange of drafts of contracts, the Plaintiff contends that they are relevant to the alleged date on which the Contract was entered into by the parties which is the subject of dispute.
- The particulars of the allegation that the Contract was entered into on or about 14 November 2011 refers to the various draft agreements exchanged between the parties. The Defendant contends that paragraph 9(c) (ix), which pleads that the Plaintiff sent the revision of the written contract with a request that the Defendant sign the Contract, is the only relevant particular of the allegation.
- Similar limitations apply to draft contracts being exchanged prior to the final contract as apply to statements and actions of parties which are reflective of their actual intentions and expectations.
- The Plaintiff emphasised that it was not relying on the draft contracts to admit the draft contracts themselves at trial but just to substantiate that the Contract was not entered into until 14 November 2011. Other than the last draft contract that was sent signed by the Plaintiff with a request to the Defendant to sign it, the other drafts exchanged prior to that time are irrelevant to the allegation that the Contract was not entered into until 14 November 2011. Paragraphs (i)-((vi) are liable to be struck out on the basis they are irrelevant to the allegation. If the defence raises a matter which could make the earlier exchanges relevant, then they may be raised by way of a reply.
Standby and Access Delay claims
- In the second strike out I determined, amongst other things, that the Plaintiff had failed to adequately plead causation and parts of its claim which Justice Ryan had previously identified as containing global elements in the Plaintiff’s claim for access delays and claims for standby. The Plaintiff contends that it has now repleaded the draft 5FASOC in a way that overcomes the previous deficiencies and that it can no longer be contended that there are global elements in its claim or any objective ambiguity which prevents the Court from giving leave for the filing of the draft 5FASOC.
- Some context is relevant to consideration of the claims.
- The Defendant entered into a contract with Wiggins Island Coal Export Terminal Pty Ltd to complete building and civil works at the Wiggins Coal Export Terminal (the Project).
- The Plaintiff was engaged as a subcontractor by the Defendant to undertake civil works as part of the Project, which included excavating fill material from the GPN Borrow Area, the OLC Cut and MC23, and hauling the excavated fill materials to the Reclamation Bunds Area C, OLC Platform, Rail Receival Platform and Road Embankment MC22 and placing and compacting the fill materials to the Reclamation Bunds Area C, OLC Platform, Rail Receival South and Road Embankment MC22 and MC 32.
- The subcontract was a schedule of rates contract.
- According to paragraph 10(h) of the draft 5FASOC, the Defendant was obliged to pay the Plaintiff standby rates while plant and equipment was unable to be utilised as planned or at all.
- Part of the Plaintiff’s claim is that the Defendant was obliged to provide it with sufficient access to the site to undertake its work. This included having access from the GPN Borrow Source and the OLC Cut to the Reclamation Bunds C Site where four sets of bunds were to be constructed consisting of earthen embankment of clay and general fill materials over a rock drainage layer. The haulage of the material was by dump trucks. There was a road from the OLC cut and another road from the GPN Borrow Source, both of which connected with a road which lead to the Reclamation Bunds C site. The road from the OLC cut is a straight road. There were two crossings on the road, Beales Creek and Pyealy Creek. The Plaintiff’s claim also relates to work at the Rail Receival South, but the Plaintiff contends that work did not hinge on any connection to a haul road, given the complaint is that the Defendant failed to clear and grub the area to provide the Plaintiff with sufficient access. The Plaintiff plead that the process of construction of the Bunds depended on sufficient access being provided to enable the Plaintiff to efficiently and productively haul the excavated fill sourced from the GPN Borrow Area, OLC Cut and MC23 to the Bunds.
- The Plaintiff contends that it has divided the site into different work fronts and the plant to be used for each work front. The Plaintiff contends it has then pleaded what has occurred in respect of access provided for different periods. In relation to the OLC road, the Plaintiff contends it has now pleaded one factual basis for each breach of sufficient access as a result of access not being provided over Pyealy Creek and then up to Beales Creek, which each relate to different times. For the GPN haul road, there was more than one physical cause for the failure to provide sufficient access insofar as it is alleged the Defendant failed to provide three access points which included a crossing at Beales Creek.
- The Plaintiff contends that it has now properly pleaded the causative effects of the Defendant’s failure to provide “sufficient access” in its standby claims. The Plaintiff’s case relies on the premise that, in the absence of any indication to the contrary, a contractor is entitled to plan and perform the work as he pleases, provided he finishes it by the time fixed in the contract. Thus, the proposed manner in which the Plaintiff planned to perform the works under the Contract is the baseline under which the claims for disruption and delay are to be considered. The Plaintiff’s contention is that it has identified the particular breaches of the failure to provide “sufficient access” on distinct work fronts, and the effect that breach had on the Plaintiff’s ability to use its’ plant equipment and personnel by reference to its planned productivity.
- The Plaintiff claims that the lack of sufficient access resulted in plant and equipment being placed on standby, and causing delay in the Plaintiff achieving completion of its works.
- The Plaintiff pleads that the Defendant was to provide and maintain sufficient access to commence and undertake the works by 19 October 2011. It however also pleads that work was to commence under the Baseline Programme:
- (a)by 2 October 2011 with sufficient access to the GPN haul road and OLC haul road;
- (b)on 15 October 2011 with sufficient access to the Bunds;
- (c)on 2 November 2011 with sufficient access to particular sections of the OLC cut;
- (d)on 3 November 2011 with sufficient access to MC23 area; and
- (e)on 17 November 2011 with sufficient access to the whole of the OLC cut.
- The Plaintiff has identified four groups of plant and equipment (and incidental personnel), namely:
- (a)Group A which was to have access to the GPN Borrow Area, GPN haul road and Bunds from 15 October 2011;
- (b)Group B which was to have access to the Rail Receival South by 28 October 2011 and then the OLC Cut and OLC haul road by 2 November 2011;
- (c)Group C which was intended to established to work on the Bunds on or about 31 October 2011 and then move to support the Group A and Group B plant on or about 24 November 2011 to undertake Work on the Bunds and the OLC Platform; and
- (d)Group D which supported Group A work and after 17 November 2011 was to provide support Group A, Group B and Group C plant.
- The Plaintiff alleges that the proposed plant and equipment was reasonable to achieve or exceed Contract productivity, and complete the works by 12 March 2012 with expedition and without delay.
- The Plaintiff alleges that there was a period of no access and then three further periods of partial access. No issue arises for the purposes of this application as to the no access period.
- The Plaintiff, by reference to the productivity which the Plaintiff was contractually obliged to meet and the plant and equipment it planned to use to meet or exceed such productivity compared to the actual productivity achieved, has identified for three separate periods and for three separate work fronts, the GPN work front, the OLC work front and Rail Receival South, the effect of the Defendant failing to provide sufficient access caused plant and equipment to be placed on standby. In contrast to the previous pleading, the Plaintiff contends the present pleading now identifies:
- (a)The Defendant’s relevant breaches of the Contract in failing to provide sufficient access to the distinct parts of the site prevented the Plaintiff from utilising equipment as planned. The Plaintiff contends that other than the GPN haul road there was one physical thing arose as a result of the breach for the other parts of the site, namely the lack of access on the OLC haul road for the OLC cut and the failure to clear at Rail Receival South. In relation to the GPN haul road there was more than one physical thing which caused the breach, namely a lack of access (which it is alleged should have been provided at three access points) and the limitations on the access road which provided partial access.
- (b)The effect of the defendant’s breaches to the physical areas of the site.
- (c)The causative effect of the Defendant’s breaches for the distinct work fronts at the site, namely that the Defendant’s breach resulted in limited physical access being available once partial access was given, a reduction in the daily productivity said to be identified in the Productivity and Standby Schedule, compared to the planned productivity for the particular work front, and the Plaintiff not being able to use the plant and equipment (and operators) as planned to achieve the planned productivity, resulting in the allocated group plant and equipment being placed on standby.
- According to the Plaintiff, the cause of the plant and equipment being placed on standby for the hours claimed was the Defendant’s failure to provide sufficient access to an identified part of the site during a specified period. The calculation of the hours of standby, being the causative effect of the Defendant’s breach, is determined by reference to the difference between the actual productivity achieved and the planned productivity for the particular work for each part of the site, during each period for the each vehicle on a daily basis.
- The Plaintiff accepts that the previous statement of claim, the Fourth Amended Statement of Claim (4FASOC), provided that in each of the access periods the Plaintiff had identified limited access areas across the whole of the site and claimed that those limitations caused all the plant, equipment and personnel to be unable to work and to be placed on standby. There was therefore global causation because the Plaintiff had failed to disentangle the cause of the standby for the various plant and equipment from the limitations on access across different work fronts on the site.
- Contrary to a previous concession in relation to 4FASOC, the Plaintiff now contends that its standby claim is not a global claim.
- The Plaintiff contends that as it now pleads the case, it is similar to the case considered by Flanagan J in Santos Ltd v Fluor Australia Pty Ltd. In that case, his Honour rejected the contention that numerous breaches had been pleaded in relation to the provision of AFC drawings in a “timely and progressive” manner, and that there was a single global delay. In rejecting the contention that the pleading was of a global claim, his Honour accepted the submission that there was one breach pleaded, namely failing to provide the drawings by a particular time. The pleading of the time at which various drawings were provided was to identify the critical delay to the performance of the work which resulted in a delay by reference to days.
- The Plaintiff submits that like the case of Santos Ltd v Fluor Australia Pty Ltd, the Plaintiff’s case is now that the Defendant has breached the Contract in failing to provide sufficient access to each of the work fronts by failing to provide the haul roads, which resulted in physical limitations said to make good that plea that caused it to not meet the planned, and in some cases contractual, productivity. According to the Plaintiff, the identification of the physical attributes that make good that plea are not a separate plea for breach, but are the physical elements of the breach. The Plaintiff contends that each claim for each work front, the OLC, the GPN and Rail Receival South, and for three distinct periods of time is a separate and distinct claim and pleaded as such. The Plaintiff contends the lack of access, prima facie, had an impact on its capacity to meet productivity, and the facts pleaded lead to a reasonable inference that the breach alleged caused the entitlement to claim standby. The Plaintiff contends it is a reasonable inference from the pleaded facts that the lack of sufficient access would cause the lack of productivity and result in equipment being placed on standby.
- The Plaintiff also relies on Built Environs WA Pty Ltd v Perth Airport (No 4), in support of its contention that it has not pleaded a global claim. In that case, the amended claim, the subject of a strike out application, was a resequencing claim which was alleged to be a global claim. As Martin J pointed out in that case, in relation to global claims and the application of the principles to a complicated set of underlying facts, there is no bright line distinction. In that case, the defendant contended that the individual breaches gave rise to global impacts affecting productivity. The plaintiff refuted this, contending that while the defendant did not accept its methodology for measuring loss caused by the breach that was not a basis for strike out. Martin J accepted the submission at an interlocutory level. His Honour found that “The plaintiff, as I see it, has nailed its colours to the mast in terms of seeking to show at a trial its substantial causative loss and damage arising out of the defendant’s breach on the basis of its reasonable mitigation efforts in the face of the alleged continuing co-operation breach by the defendant as regards Site access.” His Honour did not accept it was obvious that the plaintiff was running a global damages claim. The Plaintiff, in the present case, contends it is in a similar position.
- The Defendant contends that the Plaintiff has not amended its previous claim in the 5FASOC sufficiently to overcome the fact that the access delays and standby claims are still pleaded in certain respects as global claims. It also contends that the claims are in some respects objectively ambiguous which prevents the defendant from understanding the claim against it.
- Supporting the proposition that the standby claim consists of multiple interacting events which cannot be disentangled, the Defendant contends that:
- (a)The contractual obligation to provide “sufficient access” is not pleaded as a single obligation to do something by a single date, but rather there are multiple obligations pleaded to provide access to different parts of the site at different times in accordance with the construction program and without delay. The obligations are then said to be the subject of different breaches in each period.
- (b)Although the Plaintiff has attempted to narrow the scope of the causal chain to a particular group of plant and equipment working on a particular work front, the claims still concern multiple interacting events in each access period which have not been disentangled. It contends that the alleged breaches for each “access period” are not a single breach of a single obligation to provide access.
- (c)There is no one on one causal relationship pleaded between a particular delay in access to parts of the site and the resulting standby of particular plant claimed.
- The Defendant further elaborates on its contention, in paragraph 76 of its outline of submissions, that the Plaintiff has failed to plead causation in a conventional way and that elements of global causation remain. In summary, it contends that:
- (a)no “one-to-one” causal relationship between any access delay and the alleged resultant standby of any particular item of plant is pleaded;
- (b)no single access delay is pleaded as having caused the Plaintiff to not meet the planned productivity for a particular group of plant on a particular day “on a particular work front” (which in turn is said to have caused particular plant in that group to be on standby). Rather, the cause of standby is still pleaded on a global basis, as demonstrated by the Plaintiff’s claim in respect of the Group B plant in the 1st Partial Access Period pleaded at paragraph 33G where three different breaches are pleaded;
- (c)the Plaintiff’s reliance on alleged failures to provide the GPN haul road and the OLC haul road, said to be a single cause of each distinct standby claim for a group of plant, also contains inherent global elements. Each haul road is defined in paragraphs 26(b)(iii) and 26(b)(iv) of the draft 5FASCOC as being made up of different haul roads or access points such as Pyealy Creek and Beales Creek, which the Plaintiff claims the Defendant was to provide so that the Plaintiff had access to multiple parts of the site.
- (d)the alleged failure to provide the GPN haul road is not a single cause of plant and equipment in Group A being placed on standby but, in truth, is an allegation of delays on two different haul roads which the Plaintiff alleges were to provide access to two different parts of the site (or “work fronts”). The Defendant therefore contends that the Plaintiff has not disentangled which of those two particular access delays caused particular plant in Group A to be on standby;
- (e)the Plaintiff’s failure to disentangle the claimed effect of delays to each haul road on the utilisation of particular plant in Group A is evident if the Plaintiff does not prove, for example, that the Defendant was required to provide one or other of those haul roads. There is no basis upon which the Court could discern the extent of the shortfall in productivity and resulting standbys were caused by which access delay. Further, it contends that access via the Beales Creek haul crossing affects both the GPN haul road and the OLC haul road and is alleged to have caused standbys in both of Groups A and B; and
- (f)There is a global allegation of causation which affects both of those groups, which also affects the two groups of support plant in Group C and D, which are said to have suffered an alleged lack of productivity and resulting standby due to the access delays affecting each of Groups A and B rather than a single cause of standbys claimed in those groups..
- The Defendant contends that the claim for standby is still made on a global basis without disentangling the factual causes on standby. It contends that the Plaintiff refuses to acknowledge that it is impossible or impracticable to identify with sufficient specificity the causal link between each access delay and the item of plant or personnel on standby, which it had previously stated was the case in respect of the second strike-out application. According to the Defendant, it is still being asked to intuit which of the individual access delays affected particular items of plant and equipment which required that item of plant or equipment to be placed on standby.
- It contends the Plaintiff has pleaded a multifaceted set of obligations including an obligation to both initially provide and then maintain “sufficient access” by 19 October 2011, but it is then further pleaded in paragraph 32D that the Defendant was to provide particular haul roads at specific locations around different parts of the site, with reference to its Baseline programme at different times.
- The Defendant further contends that while the Plaintiff has sought to articulate its standby claims by reference to particular groups of plant in each period, by reference to planned productivity of different groups of plant to be utilised on different parts of the site, there is no causal link identified between specific plant and equipment and the cause of delay.
- The Defendant contends that the position is exacerbated by the fact that the Plaintiff alleges that the plant and equipment in Group As and B were interchangeable, which implicitly acknowledges that such plant was interchanged. It is another example where causation has not been disentangled. The unidentified interchange of plant and equipment in circumstances where different access delays are said to have impacted different groups of plant, the causal effect being particular plant being placed on standby and claimed at a particular rate, is said to be claimed globally and is objectively ambiguous and confusing.
Standby Claims pleaded in the draft 5FASOC
- The structure of the draft 5FASOC, with respect to the failure to provide access and the standby claims, has been canvassed to a certain extent already. Paragraph 26(a) pleads that the Defendant was to provide and maintain sufficient access for the Plaintiff to commence and undertake the work by 19 October 2011. It particularises a number of terms of the contract to support a single obligation of providing and maintaining sufficient access. In paragraph 26(b) the Plaintiff pleads alternatives allegations to what was required to be provided for sufficient access, including:
“(iii) the provision of a hall road from the GPN Borrow Source to:
- (a)the western side of the Reclamation Area C at chainage 2750;
(AA) with two access points from the aforesaid haul road to Reclamation Area C Bunds; and
(BB) which was wide enough to permit 50 T dump trucks to pass each other in opposite directions for the length of the hall road; and
[the Main haul road]
- (b)the Beales Creek Crossing located on the OLC hall road (infra) [the Power Easement haul road];
- (c)the Power Easement hall road which was to be wide enough to permit 50 T dump trucks to pass each other in opposite directions for its length.
[the GPN haul road]
Further or in the alternative:
- (iv)the provision of a haul road from the OLC Cut to the southern side of Reclamation Area C Bunds immediately adjacent to the Gladstone-Mt Larcom Road:
- (1)complete with crossings of Pyealy Creek and Beales Creek; and
- (2)was wide enough to permit 50 T dump trucks to pass each other in opposite directions for the length of the OLC haul road (infra);
[the OLC haul road]
Further or in the alternative:
- (v)relevantly to this proceeding, the provision of the rail receival South area such that it was cleared and grubbed of all vegetation and stripped of topsoil
[the Rail Receival South];
Further or in the alternative:
- (vi)the provision of the aforesaid GPN haul road and OLC haul road were required to permit plant travel sufficient to allow the plaintiff to meet the Contract Productivity, including being wide enough to permit 50 T dump trucks to pass each other over the full length of each of the GPN Haul Road and OLC Haul Road.
- Paragraph 27 pleads that a failure to provide and maintain sufficient access was a breach of contract and was a “stop work, delay commencement of work or reason beyond the plaintiff’s control resulting in a standby of plant, equipment of personnel for which it was entitled to be remunerated under the contract.”
- Paragraphs 28G and 28H plead how the plaintiff planned to achieve the relevant productivity, by reference to the use of equipment for each of the OLC Cut and GPN Borrow Source to the Bunds. The Plaintiff pleads that it planned to mobilise and utilise four groups of plant which it identifies as Groups A, B, C and D to achieve or exceed the contract productivity. The plant (and personnel) referred to in Groups C and D provided follow up work to the substantive work carried out by Groups A and B. The plant and equipment in Group A was said to be planned to undertake the excavation, haulage, fill and compaction fill from the GPN Borrow Area to the Bunds. The plant and equipment in Group B was to initially undertake similar work at the Rail Receival South after 10 November 2011 to 23 November 2011. From 24 November 2011 it was to undertake similar work in respect of the OLC Cut and MC 23 to the OLC platform and the Bunds. Upon completion of the work relating to the excavation from the OLC cut/MC 23 on or about 4 February 2012, the Group B plant was also to undertake excavation, haulage, fill and compaction work from the GPN Borrow Source to the Bunds in conjunction with Group A plant.
- Paragraph 28I pleads that the plant in each of the Groups was planned on the number of vehicles required to achieve the planned productivity but individual vehicles were not allocated to particular groups.
- Paragraph 28L pleads the planned use of the plant over the course of the Project. Paragraph 28M pleads the planned use of the plant and equipment was reasonable to achieve or exceed the contract productivity, complete the works by 20 March 2012, and complete the works with due expedition and without delay.
- Paragraphs 28N to 32 plead allegations in relation to the mobilisation of the equipment.
- Paragraphs 32B – 32D plead that there was a Baseline Programme submitted by the Defendant for Wiggins Island Coal Export Terminal Pty Ltd’s approval, which was the same as the Baseline Programme issued to the Plaintiff by the Defendant under which work was to commence with different dates for different areas. Paragraph 32E pleads that by 2 November the Plaintiff had mobilised to the subject property and established sufficient plant and equipment sufficient to commence work required to be commenced on that day by reference to the matters in paragraphs 32D(a), (b) and (c).
- Paragraphs 33A – 33AB plead that there was a breach in failing to provide sufficient access due to no access being provided with respect to the GPN haul road, OLC haul road, or the clearance at the Rail Receival South. This is not the subject of controversy.
- Paragraph 33C pleads that between 23 November 2011 and 16 December 2011, the Defendant, in breach of obligations pleaded in paragraph 26(a), (b) (or alternatively (ba)) and paragraph 32D, the Defendant had not provided “sufficient access” as the Defendant had not constructed the GPN haul road, the OLC haul road and had failed to clear and grub vegetation and strip the topsoil at the Rail Receival South. Paragraph 33D pleads that during that period, the Plaintiff was limited in carrying out its work under the subcontract due to the fact that the access to the GPN haul road was only partial because there was only access to the Bunds at one access point, and the Defendant was constructing safety berms to the GPN haul road, which limited the ability to use the access road. Both those limitations affected the ability of the Plaintiff to carry out its work. In addition to partial access, the GPN haul road was trafficable by a single lane only at reduced speeds. In relation to the OLC road, it is pleaded the Plaintiff only had access to, but not beyond, Pyealy Creek. Further, it is pleaded that the Defendant had failed to clear and grub all vegetation and strip the topsoil at Rail Receival South.
- Paragraph 33E pleads that the Plant A plant and equipment could not be utilised as planned as a result of the failure to give sufficient access and the limited access, thus identifying the physical circumstances giving rise to the breach.
- Paragraph 33F of the draft 5FASOC pleads that the Defendant’s breach in failing to provide sufficient access to the GPN haul road caused:
- (i)limited physical access between the GPN and the Bunds to one access point to haul and fill from the GPN Borrow Source and at a reduced speed to that planned, which prevented the Plaintiff from achieving its’ GPN Planned Productivity (and indeed the Contract Productivity);
- (ii)a reduction in the daily productivity for the Group A plant identified in the Productivity and Standby Schedule as against the GPN Planned Productivity;
- (iii)the Plaintiff to be unable to meet the Contract Productivity and its GPN Planned Productivity; and
- (iv)the Group A plant and equipment to be utilised was less than had been planned, resulting in standby as set out in the Productivity and Standby Schedule for reasons beyond the Plaintiff’s control.
- It is further pleaded in paragraph 33F rather awkwardly that “the Group A plant and hours of standby required by reason of not being able to be utilised as planned by reason of the matters pleaded in paragraphs 33C(a) and 33F (a) to (e) are identified in the Productivity and Standby Schedule.” It is pleaded that the lack of sufficient access and limited access provided were matters beyond the Plaintiff’s control and caused by the Defendant. As a result of the matters pleaded, it is further alleged the Plaintiff was entitled to be paid standby. The value of the standby is $176,919.75, which is particularised in the Productivity and Standby Schedule.
- Paragraphs 33G and 33H similarly plead the effect of the limited access to the OLC haul road on productivity and the utilisation of equipment in Group B plant and equipment which could and could not be utilised in the first partial access period. Reference is made to the Rail Receival South but, according to the Plaintiff, that is not part of the claim for the OLC cut, and is a standalone claim which is pleaded in paragraphs 35-35D of the draft 5FASOC.
- Paragraphs 33I and 33J plead that the limited access of the GPN and OLC haul roads affected the work that could be carried out by the Group C plant and equipment at the Bunds and OLC platform and the need for Group D plant and equipment to carry operators and other matters such as fuel to maintain the Group A, B and C plant and to supervise the work.
- The Plaintiff does not plead that a separate physical element affected them directly. The Plaintiff contends that Group C and D were affected, and their productivity was consequentially affected by the loss of productivity to groups A and B, because they were providing support to, and could only work to the extent that each of those groups were productive. The standby is pleaded on the basis that their utility commensurately fell with the loss of productivity caused by Groups A and B.
- The draft 5FASOC adopts a similar formula for the OLC haul road in regards to the standby caused for the Group B plant in paragraphs 33G and 33H.
- Paragraph 33I and 33J plead the flow on effect for the Group C plant, insofar as it was not able to be utilised for work in relation to the Bunds for the GPN haul road and for work in relation to the OLC haul road for the OLC planned productivity in the spreading and trimming of drainage rock, fill and batters at the Bunds and OLC platform. It claims that, as a result, hours of standby were required for the Group C plant. It then follows a similar formula to that described in relation to the GPN haul road. Paragraph 33J pleads the claim for standby for Group D plant in a similar manner due to the reduced need for Group D plant to carry operators to and from the relevant area, carting fuel to and maintaining the Group A, B and C plant, and supervising the work as a result of the reduced actual productivity of Groups A, B and C plant.
- The second partial access breach from 16 December 2011 to 2 February 2012, follows the same formula for the GPN haul road, the OLC haul road and for the Group C and D plant.
- The draft 5FASOC pleads a third partial access period breach, affecting both the GPN haul road and the OLC Cut, particularly as a result of the lack of crossing at Beales Creek, from 2 February 2012 to 18 February 2012. However, no standby is claimed in respect of that period (see paragraph 34I).
- The effect on Rail Receivals South access is separately pleaded in paragraphs 35 – 35D which, amongst other things, pleads that the Plaintiff could not carry out its plan to mobilise Group B plant to carry out work at Rail Receivals South between 10 November 2011 and 23 November 2011, as pleaded in paragraph 28I(b), due to the failure of the Defendant to clear the vegetation. According to the Plaintiff’s claim, it was not until 12 January that the Defendant notified the Plaintiff that work could not commence until 23 January 2012 but in fact access to the area was not provided until 9 February 2012. That access was subsequently was withdrawn until 28 March 2012. The Plaintiff contends it had to deploy other equipment because Group B plant and C plant were being used for OLC cut and MC 23. The claim for standby relates to other equipment mobilised on 24 January 2012.
- It is uncontentious that a Plaintiff generally must plead the causal connection between an alleged breach and a loss or contractual entitlement. As described by Douglas J in LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200:
“… [F]acts must be set out which lead to a reasonable inference that the acts complained of and the loss claimed stand to each other in the relation of cause and effect and that the plaintiff must plead the necessary facts showing that causal link …”
- The Plaintiff contends that it has now pleaded a conventional case as to causation in respect of the access delay and standby claims.
- The Defendant, however, contends that the real position is that the claim still suffers from global causation, with the Plaintiff seeking to raise a global claim without pleading what is required to establish such a claim, namely that it is impractical to disentangle that part of the loss which is attributable to each head of claim and that the situation has not been brought about by delay or other conduct of the claimant.
- Beech J in DM Drainage & Constructions Pty Ltd v Karara Mining Ltd (as trustee for the DM Unit Trust t/as DM Civil), described the nature of a “global claim” and a “modified total costs claim” as follows:
“ A global claim is one in which a plaintiff claiming under a construction contract contends that there were multiple interacting events for which the defendant is responsible and, rather than attempting to identify (if it were possible) the precise loss from each event, the plaintiff pursues a claim for the global loss which the plaintiff says was caused by all the events for which the defendant is responsible.
 A total costs claim is where a contractor alleges against a principal a number of breaches of contract and quantifies its global loss as the actual cost of the work less the contractually expected cost.
 A modified total costs claim is where the contractor divides up its additional costs, and claims that the whole of one or more parts of those costs is the result of events for which the principal is contractually responsible.”
- In the context of discussing global claims and total cost claims, Beech J in DM Drainage & Constructions Pty Ltd (as trustee for DM Unit Trust t/as DM Civil) v Karara Mining Ltd, referred to the oft quoted observations of Byrne J in John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd & Anor, that the question whether, in a given case, a pleading based on a global claim, or even a total cost claim or some variant of this, is likely to or may prejudice, embarrass or delay the fair trial of the proceedings, must depend upon an examination of the pleading itself and the claim which it makes. Byrne J in John Holland, acknowledged the burden which a total cost claim placed upon a defendant and stated that the Court must exercise its power to ensure that the burdens of litigation, as far as possible, are not unreasonable and unreasonably imposed.
- Whether or not the claim is pleaded as a global claim is of significance to both parties. If a claim is regarded as a global claim, then the Plaintiff must prove that there were no other material causes for the claimed delay or standby, other than those attributable to the Defendant in order to succeed. The Defendant may defend the case by demonstrating that the inference that the breaches and nothing else caused all the alleged standby and delay cannot be sustained by establishing one or more other causes. In contrast, if the Plaintiff’s pleading is accepted as sufficient to plead causation, the Defendant must plead by way of defence its basis for denial as to why the matters alleged were not causative. That may involve it having to allege what it contends was the cause or were the other causes that led to the standby of plant and equipment and delays claimed by the Plaintiffs.
Multiple Breaches Interacting?
- The Defendant contends that the Plaintiff relies on not a single obligation to provide sufficient access but rather, a multifaceted set of obligations. The Plaintiff asserts, however, it is a single obligation, albeit that it relies on various clauses in the contract.
- The Defendant contends that the allegation in paragraph 26 pleads various combinations and permeations of what constitutes “sufficient access”. Paragraph 33C also refers to “obligations” which, according to the Defendant, demonstrates that there is not a singular breach, but rather that there are multiple different obligations which are the subject of multiple breaches. According to the Defendant, they are not able to be disentangled in terms of the causative effect of any loss as a result of various breaches. The Plaintiff contends, and I accept, that it is apparent from the subsequent division of the pleading for each work front for each period that paragraph 33C pleads the breach of the provision of sufficient access for each work front which is then specifically addressed in the paragraphs which follow.
- The Defendant contends, therefore, that the Plaintiff’s case is not based on a singular obligation to provide sufficient access to commence and undertake work by 19 October, but different obligations to provide access and haul routes to different parts of the sites at different times in accordance with the construction program to complete the works.
- There is some confusion in the way that the Plaintiff has pleaded its case. That has, to some extent, permeated its submissions which refers to is a singular breach, namely not providing sufficient access to all parts of the worksite in which the Plaintiff was to undertake work by 19 October 2011, but in other parts of the statement of claim suggest that there are different breaches for separate parts of the site at different times. By way of submissions for reply, the Plaintiff’s counsel submitted that they did not assert that there was only one breach of contract. Its argument is that for each of the separate work fronts in a particular period, there is a separate breach and what flows from that separate breach is the lack of a particular physical access which it contends resulted in the lack of productivity (specific to the particular work front) which resulted in the equipment being placed on standby. Understood in this context, the reference to “obligations” in paragraph 33C is readily understood given the fact it relied upon the fact sufficient access has not been provided by either the GPN haul road, the OLC Cut or the Rail Receival South which are each separate breaches.
- There is also confusion in the pleading insofar as paragraph 26 pleads that there was an obligation to provide sufficient access by 19 October 2011, whereas paragraph 32D suggests that there was an obligation to provide access to different parts of the site by different dates. Both are relied upon by the Plaintiff in forming part of the overall breach (as described by the Plaintiff in paragraph 33C). According to the Plaintiff, all of the dates in paragraph 32D precede the period when work could commence, presumably the 1st partial access period, so it is not significant. Given the pleading now separates the GPN haul road claim and the OLC haul road claim and partial access is not pleaded to be provided until after the last date identified in paragraph 32D, the different dates in paragraph 32D do not materially affect the characterisation of the Plaintiff’s claim. It is a mischaracterisation by the Defendant that there are multiple obligations pleaded to provide access to different parts of the site at different times in accordance with the construction period and without delay. While the Plaintiff has pleaded separate breaches for the different work fronts, the effect of those breaches have been separately pleaded.
- The Plaintiff does however need to provide clarity in the pleading in relation to the inter-relationship between the different conflicting dates in paragraphs 26(a) and 32D which does give rise to an objective ambiguity.
- The Plaintiff’s claim has been redrafted to identify the cause of the lack of sufficient access for the standby claim and the delay claim by reference to the loss of productivity, as a result of the Plaintiff not being able to utilise plant and equipment as planned and meet production targets on a daily basis. It pleads that its proposed work plan was reasonable to meet the terms of the Contract, including to achieve or exceed the Contract productivity and complete the works by 20 March 2012 and with due expedition and without delay.
- While the draft 5FASOC pleads various different stages, in which varying degrees of access was provided to different parts of the site, I do consider that the present case now bears some analogy to the pleading considered by Flanagan J in Santos Ltd v Fluor Australia Pty Ltd, that the proper characterisation of the plaintiff’s pleaded claim is similar to that of the failure to provide AFC drawings by a particular date which was a single breach, and the pleaded dates on which various drawings were provided were relevant to establishing the critical delay.
- Similarly, in this case, the relevant breach is the failure to provide sufficient access by a nominated date for GPN haul road access to the Bunds (GPN Work Front), and the OLC haul road access from the OLC Cut and Bunds (OLC Work Front). Rail Receival South is of a different nature, as that involved the clearing and grubbing of all vegetation by the Defendant, not the provision of access to Rail Receival South. The Plaintiff has now introduced in the pleading a mechanism by which the effect of the breach, manifested by physical attributes, can be measured, namely the GPN Planned Productivity and OLC Planned Productivity, which is then used to measure the level of standby for the plant and equipment which had been planned to be used in that area. Given there were changes in the level of access provided, the loss of productivity suffered changed as did the level of plant and equipment that could be used as opposed to being placed on standby. Thus unlike the previous pleading which had pleaded the loss caused for the whole of site for the different periods, the present pleading identifies the loss to productivity caused and the level of standby measured by the loss of productivity having regard to the equipment that was to be used for the particular area in respect of the GPN haul road and the OLC Haul Road.
- I do not accept the Defendant’s submission that the Plaintiff has not sufficiently separated the effect of the lack of sufficient access for each of the three work fronts (as described by the Plaintiff). I accept the Plaintiff’s submission that for each of the separate work fronts, there is a separate breach and what flows from that separate breach is the lack of physical access which resulted in the lack of productivity which resulted in the equipment being placed on standby. The draft 5FASOC does plead a discrete claim for a particular period for the particular factual circumstances that applied separately for the GPN Haul Road work area, the OLC Haul Road work area and Rail Receival South. It has identified the equipment that was planned to be used for the particular period and that it was available to be used. As was candidly stated by the Plaintiff while the pleading does not identify for example, the particular truck that was planned to be used because they were allocated on the day they were to work, the pleading and the Productivity and Standby Schedule does disclose the number of trucks and other plant and equipment that were working as opposed to the number of trucks and other equipment that were planned to be used.
- While equipment was not designated to be truck “A” or excavator “B”, the Plaintiff has referred to the fact that the equipment, particularly in terms of the dump trucks used to haul the fill material, were of the same capacity and interchangeable. Given that trucks of that same were to be deployed on the different work fronts, and were not deployed or deployed for the time that was anticipated, the pleading of the number of trucks planned, which have the same capacity compared to the number actually utilised, it is sufficient to disclose the number of trucks being utilised or not utilised in order to sufficiently disclose causation in the pleading. As was recognised by the Plaintiff’s counsel, they will be required to provide evidence to show that a particular truck was working on a particular part of the site on a particular day driven by a particular person for a particular number of hours. According to the Plaintiff, it will be able to do that. There may well be an issue in relation to the Plaintiff ultimately proving its case as it proposes to do but it is presently sufficient for it to plead in the manner which the Plaintiff has, in order for the Defendant to be able to identify the case it has to meet. A further evidential issue the Plaintiff will have to meet is the fact that, according to the Defendant, the trucks were at different rates, albeit the same type of truck, for different parts of the work to be carried out, such that the basis of the claim for a particular rate will need to be established. The matters complained of do not prevent the Defendant understanding the Plaintiff’s case and to the extent further particulars may need to be provided or disclosure made in order for it to fully respond to the allegation that can be dealt with by the Defendant in its defence on the basis that material will need to be provided for it to be able to properly respond.
- The GPN haul road claim is more complex than the OLC haul road claim or the Rail Receival claim. According to paragraph 26 (b) (iii) of the draft 5 FASOC, the Plaintiff required three access points, namely the main haul road with two access points and the Beales Creek crossing, in order for the Plaintiff to have sufficient access from the GPN Borrow source. According to the Plaintiff’s case the provision of the three access points are part of the single obligation of the Defendant to provide sufficient access. The Defendant contends that demonstrates that the causes of the standby for the Group A plant cannot be disentangled and it therefore is an allegation involving global causation.
- According to the Plaintiff’s case, all three access points had to be provided in order to provide sufficient access, and the failure to provide all three access points constitutes the breach of the obligation to provide sufficient access with the added requirement that the road had to be wide enough to permit 50T dump trucks to pass each other in the opposite direction. The different roads or access points identified are, according to the Plaintiff, the physical elements of the breach.
- The fact that the Plaintiff’s case is that there had to be in addition to Beales Creek, two other access points for the GPN haul road in order to provide “sufficient access” can arguably be said to result in a single breach if all three access points are not provided but the extent to which the breach causes a loss of productivity and standby varies depending on the physical nature of the breach which is alleged to have changed in each period as partial access was provided. The GPN planned productivity is pleaded as being based on sufficient access being provided as pleaded in paragraph 26(a), (b) and (c). I consider that it is arguable in relation to the GPN haul road that the plaintiff has pleaded an obligation to provide sufficient access which has been causatively linked to the level of planned productivity utilising the equipment in Group A and the resultant alleged standby.
- The fact that “sufficient access” in paragraph 26 is said to be constituted by a number of varying roads to be provided from the very general “unimpeded, apart from reasonable construction traffic, access to all physical locations” to specific haul roads being designated from the GPN Borrow Source and the OLC Cut, with a variety of alternatives being pleaded does not mean that in relation to those separate parts of the work site, particularly in relation to the GPN haul road that the non-provision of one or more access points constitute separate breaches in relation to each alleged access point which has not been provided. The Plaintiff’s case is that “sufficient access” required the construction of all roads to enable the physical sites to be accessed in order for it to be able to comply with the Contract in terms of the contractual deadline and the amount of work. The pleading then pleads that the access that was given was only have partial access given the “sufficient access” required, which is specific to the GPN haul road and OLC Cut. Thus, the lack of the differing physical access are elements of the breach, not separate breaches. Although one would expect that the Plaintiff’s case will become more refined with the benefit of expert evidence such that a number of the alternatives pleaded will fall away, there is by the present pleading a sufficient identification of the obligation, the relevant breach and the subsequent loss, to satisfy the pleading requirements of causation.
- While one may foresee difficulties in the Plaintiff’s case in proving causation, it is not pleaded as a global claim. Notwithstanding what is required to provide sufficient access is, at least in relation to the GPN haul roads, more than one point of access, the provision of sufficient access to a particular part of the work site is a singular obligation, which has been breached but to differing levels for each of the periods in which partial access was given, not what is contented to be sufficient access over the life of the contract. I am presently not satisfied that there is an objective ambiguity in the pleading of causation such that, that the plaintiff is unable to determine the case it must meet or that it has a tendency to delay or prejudice the trial.
- During the first partial access period, access was also restricted by the fact that the single haul road provided only had a single lane with speed restrictions, which also contributed to the delay and lower productivity which, on the Plaintiff’s case, was one of the two things which contributed to the breach of the obligation to provide sufficient access. On the Plaintiff’s contention, it contributes to the loss of productivity and standby of equipment. However, even if characterised as a separate cause of loss, the restricted access is only pleaded as effecting the GPN haul road for the first partial access period. Given the limited contribution that the provision of the single lane reduced speeds has, in terms of the overall claim, the prospect that the causative effect of each may not be able to be separately identified is not sufficient to refuse leave.
- The Defendant also contends that three separate breaches are pleaded as having caused the Plaintiff not to meet the planned productivity for a particular group of plant on a particular day on a particular work front, as demonstrated by the Plaintiff’s claim in respect of the Group B plant as pleaded in paragraph 33G. Thus, it is said this demonstrates the claim is pleaded on a global basis. I accept the Plaintiff’s contention that paragraph 33G does not identify three breaches, but rather identifies the failure to provide sufficient access, and refers to the extent of access that was given and that the reference to paragraph 33D(c) was on the basis that the Group B equipment had been planned to be deployed to Rail Receival South prior to OLC work front but it is the subject of a separate claim.
- I do not accept the Defendant’s contention that the commonality of Beales Creek crossing to the GPN haul road and OLC haul road means the causative effect of the lack of the crossing cannot be distinguished for each claim. It is not unreasonable that the evidence could establish the level of interference with planned productivity, or that an expert could calculate the particular resultant delay to each of the GPN haul road and OLC haul road if the Beales Creek crossing was not provided. I do not accept that the commonality of the crossing means that it is inarguable that the causative effects of sufficient access not being provided in relation to the OLC haul road claim and sufficient access not being provided for the GPN haul road claim cannot be separated.
- In relation to the equipment and personnel in relation to Groups C and D, the Plaintiff’s case does not rely on separate breaches or separate causes for the lack of productivity and standby. Rather, it relies on it being able to succeed in its claim in relation to the GPN haul road and OLC haul road, and to a lesser extent, Rail Receivals South in order to establish the flow on effect in terms of equipment and personnel in Groups C and D. I am not satisfied that there is sufficient objective ambiguity to refuse leave in this regard or that the pleaded case of the defendant in this regard adopts a global approach. It is logical that if there is support equipment to be provided in relation to the main excavation sites and where the fill is to be laid, that the support equipment will similarly not be able to be utilised. It will, of course, be for the Plaintiff to establish that that support equipment was able to be used and would have been used in the way intended at separate times for the GPN haul road work and the OLC haul road work, and that the relative apportionment for standby can be substantiated based on the lack of productivity in relation to those areas. The Plaintiff will have to establish how the equipment was to piggy back off the work done on the GPN and the OLC work fronts. The fact the equipment and personnel in Groups C and D was to be used for both the GPN and OLC work fronts does not mean that there is a global element in the claims for standby with respect to the equipment and personnel, given that the alleged breach is said to have resulted in the equipment and personnel not being able to be utilised as planned because of the work not being able to be carried out, insofar as it is the Plaintiff’s claim that it was to be used separately in a coordinated fashion for the GPN work front and OLC work front.
- In terms of the complaint of the Defendant about a person not being able to identify which personnel would have been affected by the standby of equipment as opposed to unavailable, the Plaintiff contends that particulars have been previously provided, and can be provided, of particular personnel being linked to particular types of equipment. Those particulars will need to be formulated commensurate with the standby claims as they are now pleaded. If the particulars are not sufficient, that can be addressed as part of case management. It is not a basis upon which leave should be refused.
- Finally, the use of the Group B plant, the OLC haul road and the Rail Receival South does not support the fact that the pleaded claim is one of global causation. The pleading identifies that the equipment in Group B was to be used at different times for the OLC haul road and the Rail Receival South. It was to be utilised for the Rail Receival South area in the period prior to any partial access period. The draft 5FASOC identifies the available plant and equipment that could be utilised after the Defendant had carried out the relevant clearing work which was not until 12 January.
- While I can foresee difficulties for the plaintiff proving its claim, I consider that the way in which the Plaintiff proposes to plead its claim does plead material facts which arguably lead to a reasonable inference that the alleged breach and the alleged later events stand to each other in relation to cause and effect. I consider that the Plaintiff has now pleaded the claim for standby hours sufficiently to reasonably disclose a cause of action in terms of causation which is not a global claim, unlike the preceding 4FASOC, where I found that the Plaintiff had not sufficiently identified the relevant causal nexus.
- Subject to the Plaintiff addressing the ambiguity between paragraphs 26A and 32D in terms of breach, I consider that the Plaintiff’s amended case sufficiently pleads a chain of events and material facts supporting its case for causation, to disclose a cause of action. If difficulties arise as the case develops, they are matters which can be addressed through the case management process. While the Plaintiff has a number of hurdles to overcome to succeed in establishing its case, the Plaintiff has now sufficiently pleaded the relevant causal links to satisfy the requirements of pleading causation.
Planned productivity as part of the causal chain
- The Defendant contends that while a contractor may be entitled to plan its work, that entitlement does not give rise to an obligation on the part of the other contracting party to ensure the plan is able to be carried out, nor that a contractual right to standby arises, because the plant could not be used as planned. While that may be so, it is not contended that the claim formulated in this way is inarguable. The fact that there are legal hurdles that will need to be overcome for the Plaintiff to succeed does not mean the case is not arguable and that the pleading does not disclose a cause of action, nor was it argued on this basis. That will be a matter to be determined at trial.
- The Defendant further contends the alleged causal chain contains a global element, as the hours of standby claimed for an item of plant are said to have been caused by and calculated by reference to the entire group of plant and the Plaintiff’s case presumes that because the output of the group was not achieved on a particular day, the plant was on standby for the periods claimed.
- The Defendant also contends that the measure of productivity in the middle of the chain of causation is objectively ambiguous and confusing. It is, according to the Defendant, both being pleaded as a cause and a measure. The Defendant contends that the loss of productivity should not be a step in the causal chain in the access and standby claims. The Defendant contends that the measure for actual hours is objectively ambiguous given that logically the lack of productivity would be the result of plant not being used not the cause of it.
- The Defendant further claims that the Plaintiff’s claim conflates the utilisation of the plant with the productivity achieved from that utilisation. It contends the failure to reach an alleged planned productivity does not render itself evident, that equipment was to be placed on standby.
- The Defendant contends that the Plaintiff should have pleaded its claim by the more conventional approach of the measured mile. The Plaintiff contends that it could not do so because it never received full access to apply such a measure. The fact the Plaintiff has not pleaded its claim in the conventional way of course is not the point. The question is whether it has successfully disclosed a reasonable cause of action.
- Further, the Defendant complains that the allegation is that they did not use the plant and equipment as planned, but the Defendant is not informed whether or not they were using it at all in the Productivity and Standby schedule. The Defendant conceded that it might be something dealt with by way of particulars, but stated there is an objective ambiguity on the face of the pleading.
- According to the Plaintiff, the logical connection between the failure to provide sufficient access, the loss of productivity when actual productivity is compared to planned productivity, and the plant and equipment which was placed on standby are sufficiently identified and logically flow from its pleaded case, given it results from the physical circumstance caused by the lack of sufficient access.
- The Plaintiff has identified, by reference to each work front, the planned productivity. Paragraph 28G identifies the GPN planned productivity, particularly in respect of hauling fill material from the GPN Borrow Source to the Bunds (paragraph 28G), and identifying the equipment that will be used. The same has been done in relation to the hauling of the fill materials from the OLC cut to the OLC platform and Bunds (paragraph 28G(h)). The planned productivity has been calculated on an hourly basis by reference to each piece of equipment.
- The pleading then identifies what equipment the Plaintiff had planned utilise to achieve the GPN planned productivity for the particular access period, and the productivity that was in fact achieved, which is then used in the hours of standby. While the Plaintiff has not identified by reference to an individual truck how it was utilised on a particular day, it has identified how a particular piece of plant or equipment, for example, a dump truck, was utilised in relation to the GPN haul or the OLC haul road. Given that, and the interchangeability of equipment such as the dump trucks, there is sufficient linking between the lack of sufficient access with the reduced productivity and the reduced utilisation of plant and equipment. It is not merely a matter of presumption that because of the output not being achieved as planned, individual pieces of plant and equipment were inevitably placed on standby because they could not be utilised as planned.
- The work that was to be carried out that is alleged to have been interfered with by the lack of sufficient access was the level of haulage that could be carried out, and the consequential fill and compaction of the material at the Bunds and OLC platforms with the follow up work to spread and trim drainage rock fill and batters at the Bunds. It is not, therefore, a complex multi-layered construction process that is the subject of the claim. There is a logical connection between the failure to provide sufficient access, with the inability of individual plant and equipment to be utilised as planned, and the subsequent loss of productivity, which has now been identified for the different parts of the site. The detail which the Plaintiff has now included in its pleading and the way it pleads its claim is sufficient. The use of planned productivity does not result in the causal chain containing a global element, such that the Defendant is not able to sufficiently identify the causation case being argued by the Plaintiff. Given the different reference point of planned productivity utilising particular equipment for a particular work front, and according to the Plaintiff, it has identified what equipment was operating on the particular work front on any one day in the Productivity and Standby schedule during the three different periods concerned, the Plaintiff has not merely presumed the cause of the resulting standby that was the subject of the second strike-out judgment. Given that, nor do I accept that the calculation of standby has been done on a global basis.
- As to the causal chain, it has been pleaded that:
- (a)because of certain access delays in each access period, the Plaintiff could not utilise the plant in a particular group “as planned”;
- (b)this caused the Plaintiff to only achieve a certain level of daily productivity for the group which was less than the planned productivity; and
- (c)that the failure to achieve planned productivity then caused the required hours of standby claimed for plant on that day.
- On a superficial level, the Defendant’s contention that the loss of productivity being interposed and causing the hours of standby appears incorrect. However, the measure of productivity in the middle of the causal chain is not objectively ambiguous insofar as the Plaintiff has identified the baseline of the planned level of productivity, which has been pleaded. The proposed equipment to be used has been identified which are not significant in number. The planned productivity, based on sufficient access being provided and using that equipment, has been identified and the level of actual productivity based on the level of access that was provided has been specified. The difference in the productivity is not the cause of the standby. The standby is the result of the use of the plant and equipment that was planned to be used being physically impeded due to the lack of access. While it is a matter of inference that the plant and equipment was placed on standby for the hours claimed, based on the lower productivity, a reasonable basis for that inference has been pleaded. Although not a conventional approach the Plaintiff’s case is sufficiently clear for the Defendant to understand it and respond to it.
- While there may be foreseeable difficulties in the Plaintiff successfully executing such a claim, it is presently sufficiently pleaded to disclose a cause of action, and is not objectively ambiguous such that leave should be refused on the basis that it has a tendency to delay and prejudice a fair trial, and the determination of the issues in dispute.
Productivity and Standby Schedule
- The Defendant complains that the productivity schedule, which provides particulars of the pleading as to productivity and standby hours, is neither concise or comprehensible. It contends that it is unwieldy and complex, such that it would prejudice the fair trial of any matter, and that it is deficient, referring particularly to the comments of the Court of Appeal in Barr Rock Pty Ltd v Blast Ice Cream Pty Ltd.
- Particular complaints include that the Plaintiff has used extrapolated or assumed amounts in relation to the daily activity of each item of plant, rather than relying on actual records. The Plaintiff contends this is only the case in a number of confined cases and particularly in respect of the load count. The Plaintiff contends that there is a proper basis for the extrapolation, which is in relation to the load count, but otherwise the records have been disclosed which provide the factual detail of what has been pleaded. The Plaintiff accepts particulars are necessary, but have not yet been requested. While it may be the case that the particulars should have been included, it does not provide a basis upon which leave should be refused.
- It is also said by the Defendant that it is unclear from the Productivity and Standby Schedule whether plant equipment was not used “as planned or at all”, referring to paragraph 1(h) of the statement of claim. According to the Plaintiff, to the extent that that phrase is referred to in paragraph 10(h), it is a matter of construction. On a factual level, the Plaintiff submits that evidence will be made available as to a particular vehicle working on a particular work from source documents, which will identify what they were doing and when they were doing it. It contends that being used other than “as planned” is referrable to the pleading, i.e. their planned rate of the equipment working 10 hours per day. The Plaintiff contends that they have particularised the vehicles that were working, what they achieved and the hours they were working and not working. It contends that the complaint being made by the Defendant is really a request of evidence. In my view, there is substance in what the Plaintiff submits. I am not persuaded at present that there is any objective ambiguity in the Schedule that would require leave not being granted.
- The Defendant further claims that the Plaintiff has failed to identify the basis upon which it asserts that the plant was required to be on standby proportionately to the extent that planned productivity that was not achieved, if the plaintiff is allowed to include the loss of productivity claim. The Plaintiff however contends that the vehicles were to work for 10 hours per day (which is pleaded) and that the daily records referred to identify for every vehicle the actual number of hours worked. The defendant further claims it is not informed as to when the plant and equipment was not used at all or when it was able to be used but was less than planned. The Plaintiff contends that the schedule shows precisely when equipment was being used and when it was not. It contends further detail will be disclosed which will pinpoint the vehicle and operator working on a particular work front on any one day. If a vehicle could be used as planned, then zero hours are claimed as standby, and if not used as planned, the schedule identifies the number of hours claimed as standby. While the Defendant will ultimately need to be informed of the matters, I consider that the Defendant is sufficiently on notice of the case it has to meet. If the information is not forthcoming it may be a matter addressed in the case management process.
- The Defendant also complains that the claim ignores dayworks and variations which must form part of the scope of works, and where plant and equipment is being used for matters such as dayworks, it cannot be simultaneously be used for standby. The Plaintiff responds that the Defendant’s claim misunderstands the starting position, which is that the schedule includes planned against actual productivity and planned necessarily does not take into account variations which a party does not will arise. Variations and dayworks have been excluded, such that if a truck is doing other additional work not within the shape of the work, it is not included in the claim for standby. The Plaintiff therefore states that there is no double dipping in the approach they have adopted. Given that there appears to be no basis for the Defendant’s complaint.
- The further complaint of the Defendant is that to the extent that it is said that machinery has been on standby “and the respective operators” there is no break up of a claim into various access delays. As stated above according to the Plaintiff, there is a schedule with the operators listed which, if it hasn’t been previously provided, can be provided. Given the large size of the schedule I do not consider these further details should be added to the present schedule but rather they should be provided as a separate schedule and referred to in particulars, where appropriate. The information must of course be in a form that correlates with the way the plaintiff now pleads its case.
- As to the complaints that some of the calculations are based on the whole of the site, not individual worksites, that is a matter which may be raised by way of defence rather than being a matter which will have the tendency to delay or prejudice the trial.
- While the Plaintiff accepts the schedule is a large document, it does not accept that it is unwieldy and contends that it is the most efficient way to present the information contained. It contends that while the schedule is a large document with a large amount of information, it is not obviously deficient in the presentation of the Plaintiff’s case. While I accept there may be short fallings in the way the schedule has been provided, it provides a large amount of information to support the loss of productivity allegations, and I am not satisfied that the schedule itself would be cause for me not to grant leave. It may well be that further particulars will need to be requested by the Defendant and provided by the Plaintiff.
- As to the unruly nature of the schedule, the case is being case managed and I anticipate that that may well be something where the parties should have to be directed to confer, perhaps with the assistance of an outside facilitator such as the resolution registrar to see whether it can broken up to include the information in two schedules..
Delay and Completion Claim
- The plaintiff seeks damages due to delay caused by the lack of sufficient access.
- The plaintiff contends that it has now addressed the deficiencies which I identified in the previous strikeout judgement where I found the plaintiff had pleaded the different delays to different parts of the site as delaying completion collectively. The plaintiff contends that it has now calculated the delay to completion by pleading the consequence of the defendant’s breaches in relation to each of relevant periods of delay in completion of the work under the contract specific to each work front by an express number of days which were the result of the failure to provide sufficient access for each work front in each period. It contends that it has separated the breaches for failing to provide Sufficient Access for each work front, identified for each period and distinct work front the discrete period of delay referrable to each and calculated the duration of delay in each period for each work front by reference to the difference between the planned productivity and the actual productivity. The plaintiff contends it can be recalculate the delay for each work front by recalculating the planned against actual productivity in relation to distinct work fronts if the Court determined one breach was not made out.
- The loss is said by the Plaintiff to be made up of component parts. Provision has been made to exclude from the calculation, time for the Christmas break, wet weather, and non-working days. According to the plaintiff, if they do no establish the claim with respect to one part, the aggregation of loss can be adjusted. In the claim for delay the planned production was broken down to the planned productivity level using Group A equipment for the GPN Work front and Group B equipment for the OLC work front. The plaintiff has calculated the delay on the basis of the amount of material that was moved and placed, compared to the amount of material that was planned to be moved in each of the access periods defined in the pleading and the Work production achieved and the delay caused by moving less than the planned production. The number of days delay are calculated separately for Group A for the GPN Work front and Group B for the OLC work front as a result of the second partial breach and other sources of delay such as we weather, such that the figure is calculated by reference to individual and distinct factual events with respect to each group.
- There is no complaint in relation to the “no access” breach pleaded in paragraph 39A of the draft 5FASOC.
- The Defendant contends that the allegations in paragraphs 39B to 40AA of delays to completion by reason of the access delays remain global in nature. It contends that while the case has been narrowed in the draft 5FASOC in alleging the delay to completion, the Plaintiff has not disentangled the multiple interacting events said to have affected each group and the plant on site as a whole. In support of this contention, the Defendant submits that the previous deficiency found that the pleading failed to disentangle multiple causes of the alleged delay applies equally to the resulting delay claims in the present case based on the alleged difference between planned and actual productivity.
- Further, the Defendant complains the Plaintiff does not identify where the plant could not be used precisely as planned, how it could not be utilised as planned or where it was not used at all.
- The Defendant also contends that the fact that the plant between each of Group A and B was used interchangeably means the effect of a particular access delay on a particular item of plant is not identified. In addition, the Beales Creek Crossing forms part of the access requirement for both the GPN haul road and the OLC cut.
- These matters have been largely addressed above. I have found that it is arguable that each group was separate and distinct from the other. The delay therefore can be calculated separately in relation to the GPN work front and OLC work front.
- The delay for each of the GPN haul road and the OLC haul road as a result of the lack of Beales Creek has been separately pleaded and calculated in the draft 5FASOC for the relevant period. Although the Beales Creek crossing is alleged to be common to both the GPN Haul Road and OLC Haul Road and the lack of such a crossing would be relevant to the calculation of delay for both the work to be carried out in respect of the GPN Haul Road and the OLC Haul Road, I am not satisfied that the claims cannot be separately calculated in terms of the delay caused for each anticipated haul cycle for each of Group A and Group B which had separate routes based on the planned productivity and it is impossible to disentangle the two claims..
- Similarly the fact that plant was used interchangeably between Groups A and B does not mean that the effect of a particular access delay on an item of plant is not ascertainable where the same item was to be used and the claim is based on the planned productivity using those items of plant as opposed to be plant that was actually used. It will, as the Plaintiff recognises, be a matter of evidence being provided from which it can be proved that particular plant and equipment within the group A or B on a particular day were not being used or being utilised on a limited basis. The pleading reveals the basis of the claim being made and the relevant causal link such that it discloses a reasonable cause of action, which is sufficiently identified for the defendant to be able to plead a defence. Thus, the approach adopted by the Plaintiff is presently sufficient to disclose a reasonable cause of action.
- An additional matter that the defendant raises is that absent from the claims is any impact on productivity and time by Groups C and D even though those groups are said to be integral to the level of planned production to be achieved by each of Groups A and B. It contends that the interdependence of Groups C and D with Groups A and B means that the question of delay cannot be conventionally pleaded as the plaintiff previously acknowledged.
- The Plaintiff’s response is that the claim is not based on any delay arising from Group A and B, although there may be costs claimed for that equipment in those groups because the delay is driven by not being able to utilising the Group A and B plant in the way planned, not the group C and D groups which worked as a consequence of the work done by group A and B. While there is an interaction in the pleading between Groups C and D, it is not inarguable that Groups A and B which carry out the primary work were the source of delay rather than Groups C and D who are said to have piggy backed off the work for Groups A and B, nor does that suggest that the delay claim cannot be conventionally pleaded. There is a logical connection between Group C and D equipment which are engaged in follow up work being driven by the work carried out by Groups A and B.
Labour and supervision damages – 44A – 44C
- The Plaintiff contends that its claim for damages in paragraph 41 onwards are with respect to claims for damages after 20 March 2012. It contends that the Contract should have been completed by 20 March and what’s being claimed is for time after 20 March costs would not have been incurred and the work would have been finished on time. The further completion date takes account of events that would not have been accounted if they had finished on time including for variations. Paragraph 44B is an alternative claim for personnel to the standby claim.
- The Defendant contends that the Plaintiff still has not pleaded a case which has overcome the global elements which were found previously
- As to the further delayed completion date, the Defendant contends that although the claim for supervision costs is identified on a date by date basis the costs are still claimed in relation to the entirety of the works at the site, such that a particular supervision costs is not causally connected to a particular group of plant. Thus, the costs are claimed on a global basis by reference to all of the delays claimed to have occurred on the site up until and including that day. It similarly contends the alternative claim for labour costs remains pleaded on a global basis, namely for the entire site and are identified only on a weekly basis. No attempt has been made to link a particular labour costs for an operator to a group or plant or causally link that to an access delay on a particular day. The Defendant contends that the Plaintiff’s amendments by referring to the delayed completion date and further delayed completion date do not address the defects previously identified by identifying the causal nexus with sufficient particularity so as to enable the defendant to know with precision the case it is required to meet.
- The Defendant also complains that the Plaintiff contends it has claimed the cost of operators as its loss and that while paragraphs 44B(c) and 44C(b) are framed as being for damages the quantum claimed is not costs and losses actually incurred but rather is calculated on the basis of rates which are not included in the contract. It contends that unless the Plaintiff pleads and particularises the actual cost and loss it says it has incurred the claims to those heads of loss should be struck out.
- There is a distinction between the draft 5FASOC and the previous pleading where the delays were bundled together in one defined term and loss was sought on that basis. The Plaintiff contends that the court may adjust the loss claimed if for example it found that one of the access breaches to a particular work front did not have the delayed effect pleaded by the plaintiff on the basis it has provided sufficient particulars of the costs claimed on a daily or weekly basis over the relevant periods to allow adjustment to a delay period to be similarly applied to the loss alleged. The Plaintiff contends that the claim in paragraph 44B which identifies the cost incurred engaging operators for the equipment over the non-access period breach first partial period breach and second partial access period breach have been sufficiently particularised to allow the court to make a finding on the appropriate damage suffered dependant on which if not all of the relevant access periods are said to have been caused by the defendant’s breaches.
- Paragraph 44B pleads the costs associated with recurring overhead supervision and travel after 20 March 2012, the date which the Plaintiff was required to complete the works under the contract. The Plaintiff contends it is capable of adjustment commensurate with any finding on the actual delay by the court or rejections of periods of delay during specified access periods in particular work fronts.
- Paragraph 44C is expressed as an alternative to the claim for payment under the contract in paragraph 42 of the draft 5FASOC for the cost of operators between 20 March 2012 and further delayed completion date. It contends that the particulars are sufficient to allow the court to find the appropriate loss dependent on any findings as to the duration or allowance of the relevant access period said to have been caused by the defendant’s breaches.
- The damages claimed are for additional supervision costs and for labour costs as an alternative to plant standby rates for the First and Second Partial Access Periods. While the Plaintiff has adopted the terminology of the “Delayed Completion Date” to refer to the cumulative effect caused by the effect of the delays due to the delay caused by the Access delay breaches which it contends can be adjusted to take account of the Court findings in relation to the access period breaches, it has included in the claim for damages, particulars of the costs claimed on a daily or weekly basis to allow for adjustments its claim for the supervision and in the alternative for labour costs. Both are claimed on an entire site basis not by linking them to one of the particular categories of plant or one of the particular work fronts. In paragraph 46 of the Second Strikeout judgment I found that the plaintiff had not pleaded any link between the Defendant’s delays and the loss suffered and had made a claim for consequential delays which were in breach of contract which relies on the Defendant’s delays. I found that the Plaintiff had not rectified the previous complaint which had resulted Justice Ryan previously striking out the similar claim.
- While I accept given my above findings that the Plaintiff will be able to make adjustments if particular delays are not found, the difficulty previously identified with the Plaintiff’s claim remains, insofar as the supervision costs and labour costs are claimed on a site basis. While the Plaintiff contends the supervisor would have to be on the site regardless of the particular work delayed that is not evident from the draft 5 FASOC which claims for supervision personnel. In terms of labour costs consistent with the way the Plaintiff now frames its case the costs should be linked to the particular categories of plant and equipment for the particular periods.
- I would therefore not provide leave for the reformulated Claim for Damages in paragraphs 44A –44C as it has not overcome the deficiencies in the pleading previously identified.
- Based on the above analysis, I do not consider that leave should be given for the draft 5FASOC, given:
- (a)The pleading needs to be amended in relation to the prior negotiations to remove the prior negotiations which are no longer relied upon by the Plaintiff, those which I have determined are irrelevant and to make clear the objective facts which are said to have been mutually known by the parties derived from the prior negotiations;
- (b)To remove the particulars of all of the draft contracts other than the reference to the draft provided on 14 November 2011;
- (c)To amend the claim to make clear the relationship between the date in 26(a) and 32D;
- (d)The damages claim referred to in 44A – 44C does not sufficiently plead causation and must either be amended or, if the Plaintiff is to pursue it on the basis that it cannot disentangle the labour costs or supervision costs in a similar manner to what it has done in relation to the access claims and standby to plead the necessary preconditions for a global claim.
- In reaching this determination, however, I have not accepted the contention of the Defendant that the access delays and standby claims are still pleaded as global claims or are objectively ambiguous. While now identifying the relevant causative effect of the lack of sufficient access through the differential between the planned productivity for the particular work front and the actual productivity which resulted in the category of equipment to be used for that work front not being able to be utilised as planned, they have successfully pleaded the relevant causal link between the alleged breach and the loss of productivity and standby hours claimed. Similarly, I have not accepted that the claim for delayed completion remains a global claim given it has now also been calculated by reference to the work done in relation to the particular work front utilising the particular categories of plant sufficiently that each group is separate and distinct from the other as are the access delays, or at least that is arguably so on the face of the pleadings. As to the productivity and standby schedule, I will hear from the parties as to whether I should direct that they confer in order to be able to further refine the schedule in question.
- Leave for the draft 5FASOC is refused.
- The Plaintiff is given leave to replead the draft 5FASOC and to file a further amended statement of claim in its present form subject to the above matters identified being rectified.
- The Plaintiff is to file a further amended statement of claim by 18 June 2021.
- The Plaintiff is to pay the Defendant’s costs of the application. The Plaintiff has not been successful in obtaining leave and in any event, was obliged to bring the present application.
 Birbilis Bros Pty Ltd v Chubb Fire and Security Pty Ltd & Ors  QSC 3 at .
 Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited  QSC 122.
 Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority (2006) 33 WAR 82 at -.
 Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited  QSC 259; Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited  QSC 122.
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352-3; confirmed by the Queensland Court of Appeal in Australasian Medical Insurance Ltd v CGU Insurance Ltd (2010) 271 ALR 142 at -.
  WASC 66.
 Terravision Pty Ltd v Black Box Control Pty Ltd (No 2)  WASC 66 at .
 Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd & Anor  QSC 163 at .
 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 followed for example in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2015) 256 CLR 104 at - and - cf Bell and Gaegler JJ at .
 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2015) 256 CLR 104.
 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352.
 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337.
 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352.
 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 353.
 Save for cases where the actual intention of the parties is relevant such as rectification.
 Australasian Medical Insurance Ltd & Anor v CGU Insurance Ltd (2010) 271 ALR 142 at  referring to the case of Partenreederei M.S. Karen Oltmann v Scarsdale Shipping Co Ltd  2 Lloyd’s Rep 708.
 Terravision Pty Ltd v Black Box Control Pty Ltd (No 2)  WASC 66 at  referring with approval to BP Australia Pty Ltd v Nyran Pty Ltd (2003) 198 ALR 44 and BP Australia Pty Ltd v Nyran Pty Ltd  FCAFC 163.
 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at  followed in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2015) 256 CLR 104 at -.
 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at .
 Terravision Pty Ltd v Black Box Control Pty Ltd (No 2)  WASC 66.
 Plaintiff’s outline of submissions, .
 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337.
5FASOC, [112(c)],  and [26(b)].
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2015) 256 CLR 104 at -.
(2014) 251 CLR 640 at .
(2014) 251 CLR 640 at .
Australasian Medical Insurance Ltd & Anor v CGU Insurance Ltd (2010) 271 ALR 142 at .
Paragraphs 33A -34CG and 39B - 40AA of the 5FASOC.
Paragraph 26(a) of the Statement of Claim.
Paragraph 32B which is said to have been provided by the Defendant to the Plaintiff and contained the same dates and activities as the relevant work in the Baseline Programme for the Head Contract: [32C].
  QSC 153 with the late drawing claim being summarised at .
 Santos Ltd v Fluor Australia Ltd  QSC 153 at .
  QSC 153.
 In a similar way to what was said to be the case in Santos Ltd v Fluor Australia Ltd  QSC 153 at .
  WASC 382.
 Built Environs WA Pty Ltd v Perth Airport (No 4)  WASC 382 at .
 Built Environs WA Pty Ltd v Perth Airport (No 4)  WASC 382 at .
 Access from the GPN Borrow source to the western side of the Bunds and second to a haul crossing across Beales Creek.
 Group A, B, C and D with Group C plant being planned to work with both groups A and B in placing fill at different locations and Group D plant planned to work in support of all of Groups A, B and C.
 Access from the GPN Borrow Source to the western side of the Bunds and second to a haul crossing across Beales Creek.
 Group A, B, C and D with Group C plant being planned to work with both Groups A and B in placing fill at different locations and Group D plant planned to work in support of all Groups A, B and C.
 In fact, it appears to have been referred to because it was intended that Group B plant and equipment be used at Rail Receival South until 23 November 2011.
  QSC 229 at  referred to by Chesterman J in Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd & Ors  QSC 457 at .
 John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 8 VR 681 at ; John Doyle Construction Ltd v Laing Management (Scotland) Ltd  BLR 295 at ; McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd  QSC 178 at .
  WASC 170 at  – .
  WASC 170 referred to in Santos Ltd v Fluor Australia Pty Ltd  QSC 153 at .
 (1996) 8 VR 681.
 John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd & Anor (1996) 8 VR 681.
 Plaintiff’s Written outline,  – .
 Draft 5FASOC, [33C].
 Defendant’s Outline of Submission, .
 See also [34C] of the 5FASCOC.
 5FASOC, [28M].
  QSC 153.
 Insofar as the plaintiff’s case is that it had planned for particular equipment to be used to achieve a particular level of productivity based on sufficient access which could not be utilised as a result of the limited physical access.
 5FASOC, [33F]; cf [34CB] and [34F].
 In that regard, the magnitude of a claim is a factor relevant to a court’s decision: Santos Ltd v Fluor  QSC 153, where Flanagan J referred to DM Drainage & Constructions Pty Ltd (as trustee for DM Unit Trust t/as DM Civil) v Karara Mining Pty Ltd  WASC 170 at .
 Southern Cross Mine Management Pty Ltd v Enshan Resources Pty Ltd & Ors  QSC 457 at .
  QSC 122 at  and .
  QCA 252.
  QSC 122 at  which I considered was a pleading of a form of global causation at .
- Published Case Name:
Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited
- Shortened Case Name:
Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited
 QSC 86
29 Apr 2021