Absolute Analogue Inc v Sundance Resources Ltd

That is one communication by Ken Paterson, which establishes the relationship between Ken Paterson and his consultancy with [Viva Energy] relevant to the construction of the slip lane and the associated relocation of the communication pits. So it's not unreasonable to expect that [Viva Energy] may have had other communications with Ken Paterson which elaborate on the relationship that [Viva Energy] had to the - or - that the level of commitment that [Viva Energy] had to the carrying out of the work in the - in performance of the obligations in the deed of 15 January 1997.

That is what we're trying to get at in order to deal with the limitation defence. The acknowledgements and - can't remember the term - the acknowledgements that [Viva Energy] - that there are of [Viva Energy] having committed itself to the performance of the obligations in the deed.

1. As to Dryka & Partners, counsel for the City made submissions as to their apparent involvement discerned from the City's discovered documents.[95] In this regard, counsel submitted:[96]

[I]t seems apparent that Dryka were consultants to [Viva Energy] in matters connected with the construction of the slip lane and moving of the communication pits, a matter which goes to the level of commitment that [Viva Energy] had to the construction of the slip lane and goes to the issue of the acknowledgments and affirmations of the defendant's commitment to the obligations in the deed in relation to the slip lane and relocation of the communication pits.

1. I am satisfied that category one documents are relevant in the sense accepted by Viva Energy.[97] As to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry that would either advance or damage a party's case. As to whether discretion ought be exercised, the submissions made on behalf of Viva Energy summarised above at [75] are persuasive, and given the length of this judgment, I will not repeat them here. Without predetermining the matter, the proposed use of the category one documents by the City in its foreshadowed response to the two broad issues would likely give rise to objection being taken by Viva Energy.
2. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, on balance I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category one.

1. To the extent not already discovered, the City sought discovery of any plan, drawing, specification, report, submission, quotation or tender, or communication of any kind, or any note or memorandum prepared for or relating to traffic crossovers between the Subject Land and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Subject Land. Those documents were requested in relation to Greg Rowe & Associates or the Rowe Group; BSD Planning Consultants, and any principal, employee or other person representing any of those planning consultants.
2. The City sought further and better discovery of planning consultants engaged by Viva Energy relating to their involvement in connection with the obligation central to the proceeding.[98]
3. I am satisfied that documents falling within the scope of category two are relevant in the sense described by Viva Energy.[99] However, as to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry. As to whether discretion ought to be exercised, again I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.
4. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category two.

1. To the extent not already discovered, the City sought discovery of any plan, drawing, report, submission, quote or tender, or communication of any kind, or any note or memorandum prepared for or relating to traffic crossovers between the Subject Land and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Subject Land, or otherwise relating to traffic movements or traffic safety at the intersection of Walter Road and Russell Street, or relating to the convenient and/or safe operation of the crossovers between the Subject Land and Walter Road. Those documents are requested in relation to RJ Nairn and Partners, SPA Consultants, and any principal, employee or other person representing any of those engineers or traffic consultants.
2. By the submissions and affidavit of Mr McLeod in support of the application, counsel for the City referred to communications which suggested that Ove Arup & Partners and Wood & Grieve, both of whom I understand to be engineering firms, would be designing the slip lane.[100] However, from the express language of the application (particularly category three), I did not understand that the City sought discovery of communications in relation to either of these firms.
3. Again, I am satisfied that documents falling within the scope of category three are relevant in the sense described by Viva Energy.[101] However, as to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry. As to whether discretion ought to be exercised, I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.
4. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category three.

1. To the extent not already discovered, the City sought discovery of any plan, diagram, drawing or sketch, and any report, or any communication of any kind, or any note or memorandum prepared for or relating to the design or provision of the slip lane in Walter Road adjacent to the Subject Land, or relating to the location, design or construction of crossovers between the Subject Land and Walter Road.
2. Counsel for the City indicated that:[102]

So really, what we're after here is another indication of the level of acknowledgement and affirmation by the defendant of its commitment to the performance of the obligations in the deed in relation to the construction of the slip lane and the relocation of the communication pits. The surveyors would be quite relevant consultants in relation to the preparation of any plans for the design of the slip lane and for the provision of the land required to accommodate the construction of the slip lane.

1. Again, I am satisfied that documents falling within the scope of category four are relevant in the sense described by Viva Energy.[103] However, as to the two broad issues identified by the City and discussed at [58] to [65] above, they are relevant only insofar as they may lead to a train of inquiry. As to whether discretion ought to be exercised, I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.
2. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the scope of category four.

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Viva Energy or any representative of Viva Energy, and the various owners (or any representative of an owner) of the Subject Land relating to the provision of a slip lane in Walter Road adjacent to the Subject Land, or any note or memorandum relating to the same.
2. Documents falling within the scope of category five are relevant to this proceeding. However, the City advanced its application by reference to the two broad categories identified in its submissions (described at [58] to [65] above), and I am not satisfied that category five documents are relevant to the first of the two broad issues identified by the City. As to the second, they are relevant only insofar as they may lead to a train of inquiry. However, as to whether discretion ought be exercised, I again find the submissions made on behalf of Viva Energy summarised above at [75] above to be persuasive.
3. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the fifth category.

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Viva Energy and Telstra Corporation relating to the relocation of Telstra communication pits in connection with the proposal for construction of a slip lane in Walter Road adjacent to the Subject Land.
2. Counsel for the City submitted as to relevance that:[104]

[I]t would be particularly relevant to the level of commitment that [Viva Energy] has made to the carrying out of the obligations in the deed, to know what the nature of the communications with Telstra have been.

1. Again, I am satisfied that documents falling within the scope of category six are relevant in the sense described by Viva Energy.[105] However, I am again not satisfied that category six documents are relevant to the first of the two broad issues identified by the City and discussed at [58] to [65] above. As to the second broad issue, they are relevant only insofar as they may lead to a train of inquiry. As to whether discretion ought be exercised, I find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.
2. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it appropriate to exercise discretionary power to order further and better discovery of documents falling within the sixth category.

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Viva Energy or any representative of Viva Energy and Main Roads Western Australia in relation to the construction of proposal for construction of a slip lane in Walter Road adjacent to the Subject Land, or the construction and operation of crossovers from the Subject Land to Walter Road, or otherwise in relation to traffic management at the intersection of Walter Road and Russell Street, Morley.
2. Counsel for the City drew the court's attention to DM15 of Mr McLeod's affidavit of 26 March 2021, a communication from Main Roads to the City dated 29 July 2010, which revealed that Main Roads had been engaged in relation to the slip lane concept design.[106]
3. As to relevance, counsel for the City submitted:[107]

We would like to know what the extent of the communications was with Main Roads, so as to deal with, principally, the level of commitment that [Viva Energy] had to the design and construction of the slip lane, and also, I suppose, the - this particular request would also be relevant to [Viva Energy's] pleading in regard to problems that were raised by - and I'm paraphrasing here - but problems were raised by Main Roads in regard to the design of the slip lane. To the extent that it might be relevant to the action, and it certainly appears to have some relevance on [Viva Energy's] pleading. We would like to know what communications there were between Main Roads and [Viva Energy].

1. The reference to pleadings, while not explained, appears to be a reference to Viva Energy's further and better particulars of defence filed on 21 March 2019, as Main Roads is not otherwise referenced in Viva Energy's defence.
2. The City further noted that Viva Energy 'in its defence has made something of the fact that there were issues in regard to the design of the slip lane associated with Main Roads' requirements'.[108]
3. Again, I am satisfied that documents falling within the scope of category seven are relevant in the sense described by Viva Energy.[109] However, I am again not satisfied that category seven documents are relevant to the first of the two broad issues identified by the City and discussed at [58] to [65] above. As to the second issue, they are relevant only insofar as they may lead to a train of inquiry. As to whether discretion ought be exercised, I again find the submissions made on behalf of Viva Energy summarised above at [75] to be persuasive.
4. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I do not consider it to be appropriate to exercise discretionary power to order further and better discovery of documents falling within the seventh category.

1. To the extent not already discovered, the City sought discovery of any communication of any kind between Michael, Whyte & Co Solicitors and Viva Energy in regard to the preparation or the terms of the 1997 Deed which was ultimately dated 15 January 1997 between the City, Viva Energy, and the Owner.
2. Counsel for the City noted that Michael, Whyte & Co had prepared the 1997 Deed.[110] Counsel submits that the involvement of Michael, Whyte & Co in drafting and settling the 1997 Deed was carried out apparently on behalf of both Viva Energy and the City, and communications to and from Michael, Whyte & Co are potentially relevant to resolution of the issues in the pleadings, referred to in the City's submissions.[111]
3. As to relevance, counsel for Viva Energy again submitted that documents that fall within the scope of category eight do not relate to either of the two broad categories identified by the City in its submissions, nor could the pre‑contractual negotiations inform construction.[112]
4. I am not satisfied that the category eight documents are relevant to either of the two broad issues identified by the City and discussed at [58] to [65] above. In the circumstances, there is no basis to exercise the discretionary power to order further and better discovery.

1. The final submission made on behalf of the City in the written submissions filed in support of the City's application was in the following terms:
   1. Even if it happens that [Viva Energy] for some reason does not have relevant documents or copies in its possession, given that there are frequent references in [Viva Energy's] correspondence to the appointment of consultants and work undertaken by consultants, the consultants referred to must have maintained files which would contain correspondence and copies of correspondence relevant to the action. As consultants to [Viva Energy], [Viva Energy] should be in a position to require the consultants to provide them with documents and copy documents from their consultancy files.
2. The court has power to direct a party to take steps to obtain access to, and discover, documents which are in the possession, power or control of a third party, where there is a real likelihood that the party to the proceeding will be given access to the documents upon request.[113] Such an order is sometimes referred to as a 'Sabre order',[114] and the court has the power to make such orders pursuant to the RSC O 4A r 2(1) and r 5(2)(b) and O 1 r 4B(1)(a) and r 4B(2).
3. Viva Energy's obligation to give discovery did not extend to taking the steps contemplated in par 33. I understood counsel for the City to contemplate in par 33 is the making of a Sabre order, but the City did not apply for the same in its summons.
4. In the written submissions filed on behalf of Viva Energy in opposition to the application, counsel for Viva Energy responded to par 33 of the City's submissions, opposing the making of a Sabre order.[115] The following matters were raised by counsel.
5. First, while the City suggests Viva Energy 'copy documents from ... consultancy files', there is nothing in the RSC O 26 which requires a party to create documents for the purposes of complying with an order. Moreover, to be ordered to create a document would be one step further removed from the nature of a Sabre order.
6. Secondly, any copies of documents made would be subject to legal professional privilege, in the form of litigation privilege,[116] and such privilege is unimpeachable and stands even where, for example, the original documents may cease to exist.[117] Therefore, there is no utility in the making of orders as contemplated in par 33 of the City's submissions as they will not facilitate the production of the documents and will unnecessarily add to Viva Energy's costs of litigation.
7. Thirdly, the effect of the City's submission is to support something quite akin to a Sabre order, and no such orders have been expressly requested in the City's application. The request for a Sabre order should be refused in light of the following considerations:[118]

(a) the City produced no evidence that there is a real likelihood that the party against whom the order is sought would be given access to the documents upon request;
>
> (b) the City produced no evidence as to the likelihood that the documents sought are in fact in existence in the possession of the third party; and
>
> (c) the order sought goes beyond the permissible scope of the order, which must be limited to requiring the person against whom it is made to take all reasonable steps to obtain the documents.

8. At the hearing of the application, counsel for the City did not move for the making of a Sabre order, and neither counsel further addressed par 33 of the City's written submissions.
9. I accept the court has the power to make orders as to discovery 'at any time of its own motion in any proceedings'.[119] That is, in appropriate circumstances, the court of its own motion could order the discovering party (Viva Energy) to make reasonable efforts to procure the documents from an associated body (its former consultants) that holds them, and an ancillary order to discover documents received if produced by the associated body. However, in circumstances where no application was made, and the evidence before me was not compelling (among other things, it did not reveal whether there was a real likelihood that Viva Energy would be given access to the documents upon request), I conclude that it is not appropriate at this time on the court's own motion to make a Sabre order.

1. At the commencement of the hearing, significant parts of the City's application were abandoned through amendment to the summons. This narrowed the application to eight categories in the narrowed form as is reproduced at sch A to these reasons. The City's application in the form pressed at the hearing cannot succeed for the reasons set out above. Further, I am not prepared to make a Sabre order in relation to the production of documents that might be held by any of Viva Energy's consultants or Michael, Whyte & Co. Of course, the City might consider other avenues to secure production of the records of Viva Energy's consultants, Michael, Whyte & Co, the Owner (or any subsequent owner of the Subject Land), Telstra, or Main Roads.

1. In support of its application, Viva Energy relied upon the affidavit of Ms Vasic sworn on 31 March 2021, together with a written outline of submissions filed on 31 March 2021. In opposition to Viva Energy's application, the City relied upon the affidavit of Mr McLeod sworn on 18 May 2021 and a written outline of submissions filed on 19 May 2021. In lieu of further oral submissions after the hearing, counsel for the City filed supplementary submissions on 25 June 2021, which referred to and relied upon the affidavit of Mr Pearson sworn on 21 June 2021. Counsel for Viva Energy also filed and relied upon supplementary submissions filed on 29 June 2021.
2. As noted above, the affidavits of Mr McLeod sworn in relation to the applications contained inadmissible submission and opinion. In considering Viva Energy's application, I proceeded on the basis that the relevance of any matter was to be determined by reference to the pleadings and not to the opinions expressed by Mr McLeod in his affidavit as to relevance or otherwise.[120]
3. Viva Energy sought an order that the City file and serve a list verified by affidavit identifying all of the documents within 15 categories which are or have been in the City's possession, custody or power. While there are some common features, it is necessary to deal separately with each category and I do so below. However, before turning to the specific submissions raised by Viva Energy with respect to the 15 categories, it is useful to first outline the general submissions made by counsel for Viva Energy in support of its application, which I weighed in the balance. They include the following.

1. Viva Energy submitted that the existence of the additional documents sought can be presumed from the nature of the City's obligations and, in particular, its statutory obligations under the Local Government Act and the Local Government (Administration) Regulations 1996 (WA). In this regard, Viva Energy noted that the City is a local government with statutory responsibility for providing for good government of persons in its district,[121] which responsibility includes planning and maintaining infrastructure, such as local roads and footpaths.[122]
2. Counsel for Viva Energy also drew the court's attention to the following parts of the statutory regime:[123]

(a) pursuant to s 5.22 of the Local Government Act, the person presiding at a meeting of a council or committee is to cause minutes to be kept of the meeting's proceedings;
>
> (b) certain documents, including notice papers and agenda relating to any council or committee meeting and reports and other documents to be tabled at a meeting or which have been produced by the local government or a committee for presentation at a meeting are to be made available to the public for inspection and published on the local government's website;[124] and
>
> (c) under s 5.94 of the Local Government Act, a person may, subject to various statutory conditions, inspect a number of documents (whether or not they are current).[125]

Displacement of the rebuttable presumption by inference

1. Counsel on behalf of Viva Energy further submitted that the court may draw an inference that additional documents exist which ought to have been discovered by reason of an insufficiency that appears from one or more of the following: the pleadings; the affidavits of discovery of Ms Smith, or from the documents themselves which were formally discovered or otherwise disclosed by the City as relevant; an admission by the City; and by the City's misapprehension of its own case.
2. As to the pleadings, counsel submitted that the City had failed to discover documents relevant to its claim for damages or Viva Energy's pleas relating to set off, as was evident from the City's various lists of documents. Viva Energy says that the documents described in categories 11 to 15 are self‑evidently within the City's sole possession, custody or power and ought to have been disclosed.[126]
3. As to the discovery provided and its form, counsel submitted that it was clear that not all of the documents within the City's possession, custody or power had been formally discovered, and suggested that the informal lists provided sufficient grounds for the rebuttal of the presumption that the City had given full discovery of the categories of documents sought.[127] I also note that Ms Vasic deposed at par 22 of her affidavit of 31 March 2021 that from her review of the informal lists of documents prepared on behalf of the City, it appeared that many of the documents set out in the informal lists did not appear in the City's subsequent affidavits.
4. As to the admissions made by the City, counsel among other things referred to the informal lists of documents and submitted that by provision of the same, the City had by inference made an admission that it had failed to provide complete discovery in the proceeding in accordance with the RSC O 26 and the orders made on 11 December 2019.[128]
5. Finally, counsel noted that a misconception of the case (as a whole) by a plaintiff may assist in the drawing of inferences that other relevant documents exist which ought to have been discovered,[129] and drew the court's attention to the following:

(a) the City had said that its action is in respect of breach of the 1997 Deed, and so the policies, procedures and guidelines requested by category two are irrelevant to this proceeding. Further, the City had said that any other documents relating to the communications and dealings between the City and the Owner, apart from the deed entered into in 2019, are irrelevant to the proceeding (the significance of the 1997 Deed but not the negotiations leading to it was not made clear);
>
> (b) the City stated that the 'ceding of land for the slip lane is not essential to the construction of the slip lane, the completion of [Viva Energy's] obligations under the Deed of 15 January 1997'.[130] However, Viva Energy's case is that the laws and standards governing the design and construction of slip lanes at the relevant location have changed,[131] and counsel submitted that therefore, both the previous and current standards are relevant to the matters in issue;
>
> (c) as to the ceding of land, it was submitted that the area of land required to be ceded by the Owner is a matter directly relevant to the issue of the design of the slip lane; and
>
> (d) Viva Energy says that the ceding of land is essential to the construction of the slip lane, and any objection by the Owner to ceding the necessary land is relevant to the matters in issue (although not expressly pleaded).

1. Counsel for Viva Energy submitted that having regard to the following five matters, the court's discretion ought to be exercised in favour of the grant of its application:[132]

(a) the direct relevance of the categories of documents sought, to the core issues in dispute in the proceeding;
>
> (b) the significant passage of time since the subject matter of the dispute arose;[133]
>
> (c) the likely relative imbalance in the parties' records with respect to the subject matter of the dispute, having regard to, on the one hand, the City's statutory responsibilities and, on the other, the fact that Viva Energy, a tenant of a portion of the Subject Land, vacated the tenancy some 13 years ago;
>
> (d) the fact that many of the documents will be within the City's sole possession, custody and power and unavailable from any other source; and
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> (e) the improbability of the number of documents being so extensive so as to be oppressive.

Documents referred to in the discovered documents (category 1)

1. The first category of documents sought are the documents and attachments referred to in documents discovered by the City in the list of discovered documents verified by Ms Smith in her affidavit of discovery sworn on 28 January 2020, including but not limited to notes and minutes taken of the City's planning meeting of 14 November 1995 (which meeting is referred to in document 9 of the City's list of discovered documents verified by Ms Smith on 28 January 2020). In the course of the hearing, counsel for Viva Energy confirmed that category one is concerned with notes and minutes of any planning meeting held in November 1995.[134]
2. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that other documents exist that fall within the scope of the first category.
3. As to existence, Viva Energy particularly referred to and relied upon:

(a) the letter from Dryka & Partners, the architects for the development referred to in the proceeding, to the City dated 13 November 1995 which referred to Dryka & Partners being invited to attend the City's 'Councils [sic] Planning Meeting on Tuesday 14th November 1995';[135] and
>
> (b) to a subsequent letter from Dryka & Partners to the City dated 20 November 1995, in which Dryka & Partners referred to the discussions that took place between it and the City at a meeting the week prior, that is in the week that included 14 November 1995.[136]

4. Having regard to this correspondence, Ms Vasic deposed to having formed the belief that on or about 14 November 1995, a meeting took place between the City and Dryka & Partners in respect of the proposed development.[137] Ms Vasic also deposed that the City has discovered minutes of other planning meetings,[138] from which Ms Vasic inferred that minutes were generally taken of such meetings.[139]
5. The correspondence from Dryka & Partners, the discovery of minutes of other planning meetings by the City, and the obligation of the person presiding at a meeting of a council or committee to cause minutes to be kept of the meeting's proceedings, together provide the court with reasonable grounds for being fairly certain that the documents sought are (or were) in existence. An inference may be drawn in these circumstances that additional documents exist which ought to have been discovered in respect of the insufficiency which appears from the documents themselves which are referred to in Ms Smith's first affidavit of discovery.
6. I am also satisfied that the documents sought are relevant and ought to have been disclosed. Category one relates to documents referred to in the City's early discovery and relevance is presumed to be conceded by the City.[140] Further, for the purposes of this application, I accept that the City's internal deliberations, and discussions conducted internally at meetings such as its planning meetings, are relevant to the circumstances in which the City issued the development approval by letter dated 29 November 1995, including the imposition of condition 34, because they form the relevant surrounding circumstances in which the condition came into existence.[141]
7. In considering the first category, I had regard to the submissions made on behalf of the City and particularly to the matters deposed to by Mr McLeod in his affidavit sworn on 19 May 2021 at par 18. I proceed on the basis that the assurance proffered by Mr McLeod in his submissions that the City has no documents to produce, and Mr McLeod's hearsay evidence to that effect,[142] is not the end of the matter. Nor am I content to draw by inference the conclusions promoted by Mr McLeod at par 18(a) of his affidavit, following Mr McLeod's examination of the documents discovered by the City.
8. Having regard to the matters described at [143] above, I am satisfied that the circumstances favour the exercise of discretion in favour of the application. In this regard, I note that category one is very narrow in scope and it is unlikely that the number of documents within its ambit will be so extensive so as to be oppressive.

1. The second category of documents sought are the City's written policies, procedures, guidelines and the like relating to or giving rise to the 'Relevant Requirements', as defined in sch A to Viva Energy's application,[143] including but not limited to:

(a) the relevant town planning scheme, and any relevant draft town planning scheme not then in effect;
>
> (b) by-laws and gazettes, including a gazette dated on or about 20 January 1996 (identifying resumption of land from the corner of Walter Road and Russell Street);
>
> (c) any written basis for the requirements imposed or sought to be imposed by the development approvals by the City's director of technical services; and
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> (d) any written basis for the requirements imposed or sought to be imposed by the development approvals by the City's engineering department.

2. I had regard to the submissions and affidavit evidence filed in support of and in opposition to the provision of further and better discovery of documents which fall within the ambit of category two. Having regard to the same, I am fairly certain that documents exist that fall within the scope of the second category.
3. I gave weight to the evidence of Ms Vasic, who deposed that she is fairly certain that the City has, and had at the relevant time, written policies regarding the technical requirements for the construction of local roads based on the following.
4. First, the City's development approvals dated 29 November 1995, 31 January 1996 and 4 December 1996 refer to the requirements of the City's director of technical services and the requirements imposed by the City's engineering department. Ms Vasic deposed that given the City's statutory obligation to maintain local roads, it can be inferred that it has standard requirements (in the form of written policies or procedures) for the construction of such roads, including details such as the width of lanes, the thickness of the road base, the level of compaction required, the thickness and type of road surface required, any drainage considerations and the specifications of any curbing, including dimensions and permissible materials.[144]
5. Secondly, Ms Vasic had reviewed the City's website, which contained links to documents such as town planning schemes, requirements and guidelines with respect to developments, and even policies with respect to street verges and crossovers. She noted that the City's current crossover application booklet set out the types of specifications which Ms Vasic inferred to exist with respect to local roads.[145] Ms Vasic further noted that on page 13 of that booklet, it is stated that 'all new crossovers are to be constructed in accordance with the City of Bayswater Specifications for Crossovers'.[146]
6. Having regard to this evidence, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence.
7. I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings, particularly:

(a) Viva Energy's plea as to par 5 of the City's amended statement of claim, where among other things, Viva Energy pleads that condition 34 of the development approval must be read in the context of all of the other relevant circumstances, which includes that the plans and specifications referred to at par 8 of the amended statement of claim would not necessarily comply forever with the laws and/or standards governing the design and construction of slip lanes at the relevant location;[147]
>
> (b) par 13(c) of the defence to the amended statement of claim, where Viva Energy pleads that the plans and specifications referred to at par 8 of the amended statement of claim no longer comply with the laws and/or standards governing the design and construction of slip lanes at the relevant location; and
>
> (c) par 8 of the City's reply, where the City pleads that it does not admit par 13(c), and pleads that, in any event, there have been no significant changes in the laws and standards relating to the construction of slip lanes which affect the obligation of Viva Energy to construct the slip lane 'to the satisfaction of the Director of Technical Services'.

8. The category two documents are relevant in light of the matters in issue as pleaded, and I am satisfied that they may either advance or damage the parties' respective cases.
9. I am satisfied that the policies, standards and specifications of the kind that relate to work that the City says Viva Energy was obliged to do. By reason of Viva Energy's breach, the City pleads that it will be obliged to carry out that work at its expense and will thereby suffer damage. It follows that I am satisfied that the documents within category two are relevant and ought to have been disclosed, and are particularly relevant to:[148]

(a) the development approvals set out in various conditions which require the 'Developer' to provide plans or drawings for approval. Approval of those plans, drawings or specifications for the Relevant Requirements (as defined in sch A of Viva Energy's application) is subject to meeting the requirements and satisfaction of the City's director of technical services. I accept that there is a direct link between the specifications for the construction of the slip lane and the City's claim for damages;[149]
>
> (b) Viva Energy's pleadings relating to the refurbishment of the slip lane.[150] As was deposed to by Ms Vasic, the City's website lists a number of resurfacing projects which the City has approved, and the need for resurfacing can only be measured against a criteria for such works, which can reasonably be assumed to include minimum standards for such roads;
>
> (c) whether or not the construction of the slip lane in accordance with the 1997 Deed complies with current laws and standards;[151]
>
> (d) whether or not the conditions and relevant requirements under the development approval dated 31 January 1996 comply with the current laws;[152] and
>
> (e) the order in which the obligations under the 1997 Deed were to be performed.[153]

10. I note that extensive submissions were made on behalf of the City, disputing that the documents sought by Viva Energy exist, and to the extent that they do exist, that they are irrelevant. I had regard to the same.
11. As to existence, in opposition to the application, Mr McLeod deposed to his belief that the discovery of the class of documents contemplated by category two was 'mistaken and inappropriate' because he had been informed by Ms Smith and verily believed that there were no policies or procedures relevant to the liability issue in this case, and nothing of that kind could be identified by the City as being relevant to the construction of the 1997 Deed or the limitation defence.[154]
12. As to the City's damages claim, Mr McLeod deposed that it will include two elements:[155]

(a) the costs of causing the communication pits to be relocated, which can only be determined by obtaining a current quote from Telstra, which quote must be obtained within one month of the placement of the order for the work;[156] and
>
> (b) the cost of constructing the slip lane, including such matters as traffic management, reinstatement of landscaping and the crossovers and incidentals. He further deposed that those costs would be based on the most recent and relevant costs incurred for such work, and contract and tender prices for work of that kind, not on policies or procedures.

13. It was submitted that in light of the above, the premise of the request for discovery of documents within category two appeared mistaken. Mr McLeod further deposed that he had been informed by Ms Smith and Mr Pearson (the director of major projects of the City and a civil engineer) and verily believed that the City cannot identify any policy or procedure that would be relevant to the assessment of damages.[157]
14. From the submissions made and Mr McLeod's affidavit deposed in opposition to the application, it is evident that the City intends to prosecute its case in a particular way. However, the City's approach is not determinative of relevance, and I am satisfied that the documents within category two may lead to a train of inquiry that may advance the defence of Viva Energy.
15. For completeness, I note that Mr McLeod made a number of submissions from which he drew upon his understanding of what local governments 'normally' do.[158] While I gave weight to the affidavit evidence before me, I gave no weight to Mr McLeod's submissions to the extent that they were unsupported by evidence.
16. I note that Mr McLeod had deposed to his belief that the request in category two is, in any event, unreasonably imprecise and confused as it does not distinguish between the policies and procedures applicable at various points in time.[159] While I am cognisant that category two is broad in scope, given Viva Energy's pleaded defence,[160] I am satisfied that it is appropriate.
17. Finally, having regard to the matters described at [143] above, I am satisfied that the circumstances favour the exercise of discretion in favour of the application. In this regard, I am cognisant that category two concerns documents within the City's possession, custody and power and unlikely to be available from any other source.

Documents regarding development approval dated 31 January 1996 (category 3)

1. To the extent not already discovered, Viva Energy sought discovery of all documents relating to the City's development approval dated 31 January 1996 that refer or relate to the 'Relevant Requirements', as defined in sch A to Viva Energy's application,[161] including but not limited to:

(a) any recommendation or other internal document leading to or regarding that development approval and the conditions set out therein;
>
> (b) all communications between the City's office holders, employees and third parties leading to or relevant to that development approval and the conditions set out therein; and
>
> (c) all communications between the City's office holders, employees and third parties, regarding the plans, drawings and specifications relevant to that development approval.

2. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that documents exist that fall within the scope of the third category.
3. As to existence, the City resisted providing further and better discovery of such documents and asserted, among other things, that it had discovered all documents in this category.[162] Again, the assurance proffered by Mr McLeod in his submissions that the City has no documents to produce, and Mr McLeod's hearsay evidence to that effect, is not the end of the matter.
4. As to existence, I had regard to Ms Vasic's evidence. Ms Vasic deposed that it can be inferred from the City's response to category 11 (being internal communications relating to the City's damages),[163] that the City has not undertaken enquiries of its employees in relation to any category of document, including category three.[164] Viva Energy further contended that it can be inferred from the existence of some discovered documents that documents within category three did at one time exist, and it is clear that not all such documents have been discovered.[165]
5. Ms Vasic further deposed that the development approval dated 31 January 1996 (which included condition 34), referred to in the 1997 Deed, required various plans to have been submitted to the City for approval. Ms Vasic deposed to her belief that these documents must have been provided to, and approved by, the City in order for it to issue the classification certificate pleaded at par 12 of the amended statement of claim and par 12 of the defence to the amended statement of claim.[166]
6. Ms Vasic deposed to her belief that, because the obligation under the 1997 Deed was to construct the slip lane in accordance with annexure B, in order to do so and at the development approval stage, there must have been documents coming within this category,[167] being specifications, plans and drawings approved by the City relating to:

(a) the relocation of communication pits referred to in the 1997 Deed;
>
> (b) the area of land required to be ceded in order to allow for the construction of the slip lane; and
>
> (c) the dimensions of the slip lane itself.

7. Having regard to Ms Vasic's evidence, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence.
8. As to relevance, the City maintained that development approval is not in issue in this proceeding, noting that the City's action is to enforce obligations in the 1997 Deed.[168] The City further submitted that Ms Vasic's premise for the request for further discovery of this category appeared to be mistaken. Mr McLeod deposed that the 1997 Deed and condition 34 of the development approval imposed the obligation of construction of the slip lane on Viva Energy as the developer. Mr McLeod said that it was for the developer to produce any specifications, plans and drawings for approval by the City, and Mr McLeod deposed to having been instructed by Ms Smith and verily believing that is the normal procedure in the development approval process.[169]
9. As to relevance, Ms Vasic deposed that it can be inferred from the City's response by its letter dated 18 December 2020, that the City accepted the relevance of at least some of the documents sought within this category.[170] Viva Energy further submitted that the documents within category three are relevant to the matters in issue because:[171]

(a) it will be necessary for the court to consider and determine whether or not the plans and specifications forming annexure B to the 1997 Deed comply with current laws and/or standards so as to enable them to be approved for construction;[172] and
>
> (b) it may also be relevant to the order in which the obligations under the 1997 Deed were to be performed, and may shed light on the relevant requirements of the City's director of technical services, particularly in the absence of any discovered documents directly addressing this issue.[173]

10. Having regard to the submissions made and the evidence relied upon, I am satisfied that the documents sought are relevant and ought to have been disclosed. The documents are relevant, among other things, to Viva Energy's pleaded defence at par 15(b)(v), and to an assessment of whether or not the plans and specifications forming annexure B to the 1997 Deed comply with current laws and/or standards so as to enable them to be approved for construction.
11. I am cognisant that category three in its terms goes beyond the specifications, plans and drawings that may have been submitted to the City by Viva Energy for approval. The scope is cast so as to include internal documents, communications between the City's officeholders, employees and third parties. I am satisfied that such scope is appropriate in the circumstances, having weighed in the balance the matters described at [143] above, and the notion of proportionality. In this regard, I note that discovery is not sought of all documents relating to the City's development approval dated 31 January 1996. The documents must refer or relate to the 'Relevant Requirements', as defined in sch A to Viva Energy's application. In this regard, the scope is appropriately focussed.

Documents regarding development approval dated 4 December 1996 (category 4)

1. Viva Energy seeks to the extent not already discovered, all documents relating to the City's development approval dated 4 December 1996 that refer or relate to the 'Relevant Requirements', including but not limited to:

(a) any recommendation or other internal document leading to or regarding that development approval and the conditions set out therein;
>
> (b) all communications between the City's office holders, employees and third parties leading to or relevant to that development approval and the conditions set out therein; and
>
> (c) all communications between the City's office holders, employees and third parties, regarding the plans, drawings and specifications relevant to that development approval.

2. As to existence, Ms Vasic relied upon the same documents as relied upon for the purposes of category three (as summarised at [172] to [174] above) to inform her belief that the category&#160[174]ur documents existed.174 As to relevance, Ms Vasic had regard to those matters referenced for the purpose of category three (described at [177] above) to inform her belief that the categor[175]four documents were relevant.175
3. With respect to category four, the City raised three matters in opposition to providing discovery.
4. First, the City noted that the development approval of 4 December 1996 was only relevant to the proposal originally approved in November 1995. It was the City's position that the amendments are not relevant to any issue in this action and further discovery of documents concerning the development approval of 4 December 1996 is not appropriate.[176]
5. Secondly, the City does not have any further documents to discover in this category. In this regard, Mr McLeod deposed to having been informed by Ms Smith and verily believing that the City had conducted diligent searches and enquiries, including with employees and former employees.[177]
6. Thirdly, documents related to the development approval dated 4 December 1996 that have not been discovered, if they exist, would only be documents in the possession or control of Viva Energy and/or its various consultants, and not available or known to the City.[178]
7. For the same reasons as expressed in relation to category three, having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that documents exist that fall within the scope of the fourth category.
8. Having regard to the evidence before me and the submissions made, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. Further, I am satisfied that the documents sought are relevant and ought to have been disclosed.
9. As to the relevance of the documents, I am satisfied that the documents within category four are relevant to the matters in issue because:[179]

(a) it will be necessary for the court to consider and determine whether or not the plans and specifications forming annexure B to the 1997 Deed comply with current laws and/or standards so as to enable them to be approved for construction;[180] and
>
> (b) they may also be relevant to the order in which the obligations under the 1997 Deed must be performed and may shed light on the relevant requirements of the City's director of technical services, particularly in the absence of any discovered documents directly addressing this issue.[181]

10. Again, having regard to the submissions made and the evidence relied upon, I am satisfied that the documents sought are relevant and ought to have been disclosed. The documents are relevant, among other things, to Viva Energy's pleaded defence at par 15(b)(v), and to an assessment of whether or not the plans and specifications forming annexure B to the 1997 Deed comply with current laws and/or standards so as to enable them to be approved for construction.
11. I am again cognisant that category four in its terms goes beyond the specifications, plans and drawings that may have been submitted to the City by Viva Energy for approval. The scope is cast so as to include internal documents, communications between the City's officeholders, employees and third parties. I am satisfied that such scope is appropriate in the circumstances.
12. Further, I note that discovery is not sought of all documents relating to the City's development approval dated 4 December 1996. The documents must refer or relate to the 'Relevant Requirements', as defined in sch A to Viva Energy's application. In this regard, the scope is appropriately focussed.

Documents regarding fulfilment of the development approvals and the development (category 5)

1. Viva Energy sought discovery of all documents following completion of the development of the Subject Land during the period of 1995 to 1997 relating to or recording communications or discussions between the City; the Owner; any subsequent owner of the Subject Land; Viva Energy; and any party affected by the Relevant Requirements (including but not limited to Main Roads WA, Telstra, and the State Energy Commission of Western Australia/Western Power) with respect to the Relevant Requirements.
2. Viva Energy's belief as to the existence of documents that fall within the scope of this category is based on two documents.
3. First, an email communication from Proven Project Management to the City on 14 September 2016, which recorded as follows:[182]

As we all figured out by reviewing the City's file at the meeting, there seems to be an outstanding issue between the landowner ... and the City of Bayswater. The issue seems to centre around the [Main Roads Western Australia] required geometry of the slip lane which requires an expanded truncation. This expanded truncation and alternate design does not appear to have been contemplated in the agreement. It is apparent from the City's file and from the undersigned's inspection of the site, that the landowner is potentially seeking compensation from the City for the additional area of road widening[.] (original emphasis)

1. Ms Vasic noted that the City had not discovered 'the City's file' nor any documents relating to the additional area of road widening referred to in the email communication described above.[183]
2. Secondly, a deed between the City and the Current Owner dated 21 September 2020 referred to what Ms Vasic inferred to be significant correspondence between those parties. Ms Vasic based this inference on the significant amount of legal costs which the City had apparently agreed to pay to the Current Owner on account of their costs incurred 'in connection with previous negotiations to achieve the ceding' of the land required for the construction of the slip lane (cl 3(3)(e) of that deed).[184] Counsel for Viva Energy noted that documents relating to those previous negotiations had not been discovered.[185]
3. In opposition, Mr McLeod deposed that he was instructed by Ms Smith that the City has discovered all discoverable documents on 'the City's file' referred to in the email from Proven Project Management to the City on 14 September 2016,[186] and there is no other file of the City relevant to the action. Again, the assurance proffered by Mr McLeod in his submissions that the City has no documents to produce, and Mr McLeod's hearsay evidence to that effect, is not the end of the matter. Having regard to the evidence of Ms Vasic, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence.
4. As to relevance, counsel for Viva Energy submitted that with respect to category five:[187]

(a) the City appeared to assert in its letter dated 18 December 2020 that the communications between it and the various owners of the Subject Land were not relevant to the matters in issue. Viva Energy disagreed with that position because if the communications disclosed that the City agreed with an owner that condition 34 was modified or no longer applied, that would be relevant; and
>
> (b) the City stated that the scope of the request was unreasonably wide in that it 'covers private or personal notations made from time to time by officers or employees' of the City. Viva Energy's position was that such documents fall within the scope of documents within, at least, the City's possession or control and are directly relevant to the primary matters in issue. This is because notes taken by the City's officers or employees could only have been taken in their capacity as such and not their private capacity.

5. Ms Vasic further deposed to the relevance of this category of documents on three bases.[188] First, any agreement by the Owner to cede the land required for the construction of the slip lane is relevant to the plea at par 7(a) of the defence to the amended statement of claim, and the negotiation leading up to the entry into any agreement between the City and the Owner is likewise relevant to that plea. Secondly, the land shown at annexure A to the deed between the City and the Current Owner dated 21 September 2020 appeared, in Ms Vasic's belief, to be a different and greater area than that shown in annexure B to the 1997 Deed, which is relevant to the plea at par 9(a)(iv) to the defence to the amended statement of claim. Thirdly, the City had previously discovered correspondence between it and the Current Owner in relation to the Relevant Requirements (as defined in sch A of Viva Energy's application), thereby accepting the relevance of the same to this proceeding.[189]
6. Having considered the affidavit evidence and the submissions made, I accept that the steps taken after completion of the development of the Subject Land to meet the Relevant Requirements[190] are relevant to the matters in issue, which include steps taken to secure the ceding of land as contemplated by condition 34, and any variation of the obligation on the Owner prescribed by condition 34. The category five documents are relevant in light of the matters in issue as pleaded, and I am satisfied that they may either advance or damage the parties' respective cases.
7. Mr McLeod's assertion in his affidavit that it was clear that the securing of the ceding of the slip lane land to enable the construction of the slip lane more appropriately fell on Viva Energy than the City,[191] was not an opinion that I could properly weigh in the balance. The proper construction of the 1997 Deed is a matter in issue in this proceeding. Discovery ought not be curtailed by reference to one party's preferred construction in preference to another.
8. The City pleads that Recital B to the 1997 Deed stated, among other things, that Viva Energy would construct the slip lane in accordance with plans and specifications approved by the City, a copy of which was annexure B to the 1997 Deed.[192] Whether the arrangements proposed or made with the Owner or any subsequent owner were consistent with plans and specifications approved by the City (reflected in annexure B to the 1997 Deed), is a matter relevant to the defence of Viva Energy.
9. Having regard to the ambit of category five, I consider that it is clearly defined, and the scope appropriately focussed. In determining it appropriate to exercise the discretionary power to grant Viva Energy's application in relation to category five, I note that, among other things, I had regard to the principles in O 1 r 4A and r 4B; whether discovery is necessary for fairly disposing of the proceeding; and the notion of proportionality.

Documents regarding ceding the land (categories 6 and 7)

1. Categories six and seven concern the ceding of the Subject Land.
2. To the extent not already discovered, Viva Energy sought discovery of all communications between the City and the Owner and any subsequent owner of the Subject Land regarding the obligations set out in condition of the development approval dated 31 January 1996 and the 1997 Deed including, specifically, ceding the land required to construct the slip lane: category six.
3. Viva Energy also seeks to the extent not already discovered, all documents after completion of the development of the Subject Land, including communications and records of all discussions between the City, the Owner and any subsequent owner of the Subject Land and/or Viva Energy regarding the ceding of a portion of the Subject Land for the purposes of the construction of the slip lane: category seven.
4. As to the existence of documents that fall within the ambit of categories six and seven, Viva Energy referred to the terms of the deed between the City and the Current Owner dated 21 September 2020, which Ms Vasic deposed grounded an inference that there was significant correspondence and negotiations between those parties.[193] Viva Energy submitted that the terms of the deed gave rise to an inference which displaced the presumption that the City had complied with its discovery obligation.
5. Ms Vasic also deposed that the likely existence of further documents could be inferred by the letter from McLeods Lawyers to HWL Ebsworth dated 18 December 2020, in which the City stated that 'other documents relating to communications and dealings between the City and the owner are considered to be irrelevant to the action'.[194] (That is, the City did not deny such documents existed, but opposed discovery on the basis of relevance).
6. Having regard to the evidence before me and the submissions made, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought by categories six and seven are (or were) in existence.
7. As to relevance, in addition to the matters which grounded its submissions in relation to category five, Viva Energy submitted that categories six and seven relate specifically to communications between the City and the various owners of the Subject Land, from time to time, in relation to ceding the land required for construction of the slip lane.[195] Viva Energy submitted that, notwithstanding that the relevant portion of the Subject Land has now been ceded, the City's efforts since the 1997 Deed was executed to arrange the ceding remain relevant.[196] I understood counsel for Viva Energy to submit that the effort made by the City to have part of the Subject Land ceded is a matter relevant to the ongoing existence of any obligation on Viva Energy to construct the slip lane.
8. The matters raised in opposition to category five also grounded the City's opposition to providing further and better discovery of documents falling within the ambit of categories six and seven.[197]
9. Counsel for the City noted that the ceding was not relevant to the obligations the City seeks to enforce against Viva Energy because the obligation to cede was a separate obligation, which the City could enforce against the Owner.[198] Moreover, counsel for the City submitted that as the ceding had been effected, the documents relating to the same were irrelevant.[199]
10. I am satisfied that documents falling within the ambit of categories six and seven are relevant and ought to have been disclosed. The proper construction of the development approval, including condition 34, and the 1997 Deed, remain in issue between the parties. The position adopted by the City in relation to discovery of documents within the ambit of categories six and seven was informed by the City's view as to the proper construction of the development approval, including condition 34, and the 1997 Deed. However, discovery ought not be curtailed by reference to one party's preferred construction in preference to another.
11. The communications between the City and the various owners of the Subject Land regarding the obligations set out in condition 34 and the 1997 Deed (particularly those which concern the ceding of the land required to construct the slip lane); and the documents which concern steps taken after development to secure the ceding of the land as contemplated by condition 34, are relevant in light of the matters in issue as pleaded. I am persuaded by Viva Energy's submissions as to relevance and I am satisfied that they may either advance or damage the parties' respective cases.
12. I am also satisfied that, having regard to the matters described at [143] above, to the principles in the RSC O 1, r 4A and r 4B, and proportionality, the circumstances favour the exercise of discretion in favour of the application. Categories six and seven are narrow in scope, making it unlikely that the number of documents within their ambit will be so extensive so as to be oppressive. Further, I consider discovery of documents falling within the scope of these categories to be necessary for fairly disposing of this proceeding.

Documents relating to the communications pits (category 8)

1. Viva Energy sought discovery of all documents with respect to installation of the communications pits including but not limited to:

(a) any notices issued from Telstra to the City regarding installation; and
>
> (b) any communications or consents between Telstra and the City.

2. With respect to the existence of the documents sought by category eight, Ms Vasic deposed that there are now additional utilities and service pits located in the area of land on which the slip lane was to be located.[200] She noted that it is a legislative requirement that the City be given notice of a carrier's (for example, Telstra's) intention to install facilities on its land (and that it can object to Telstra doing so).[201] On that basis, Ms Vasic deposed to having formed the belief that the City must have had such notices, and it is likely that it also had other correspondence relating to the proposed addition of infrastructure within the communication pits.[202]
3. Ms Vasic further deposed to having reviewed the City's website and noted that it has a published Telecommunications Infrastructure Policy, from which she inferred that it is unlikely that conferral with telecommunications providers did not occur.[203]
4. As to existence, Mr McLeod deposed that the City has never been the owner of the slip lane land, and as such, Telstra would not have been obliged to give notice to the City.[204] Mr McLeod also deposed to being instructed by Mr Pearson that the City has no knowledge of any additional services being placed in the area, or whether any actually have been installed. Further, the City submitted that its Telecommunications Infrastructure Policy is irrelevant to the matters in issue, and Mr McLeod noted that the City is not concerned within this action with any telecommunications infrastructure installation or proposal on its land.[205] Finally, Mr McLeod deposed that the City had, in any event, discovered all documents of its communications with Telstra in relation to the communication pits and their relocation.[206]
5. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. In reaching this conclusion, two matters bore in the balance. First, the fact that the City does not own the Subject Land and that Telstra would not have been obliged to issue notices to, or seek consent from, the City is not the end of the matter. Viva Energy is seeking discovery of documents with respect to the installation of the communication pits, which may or may not involve Telstra. Secondly, the City disclosed by its solicitors to HWL Ebsworth an additional plan prepared in March 2019,[207] which included references to utilities and service pits which had been installed after the execution of the 1997 Deed. The City's possession of this map provides the court with a reasonable ground for being fairly certain that the City engaged in communications regarding the same.
6. As to relevance, Viva Energy submitted that the relevance of documents within this category appeared to be conceded by the City in its letter dated 18 December 2020, but said, in any event, the documents are relevant to whether the City, by reason of Viva Energy's alleged breach, will be obliged to have the slip lane works carried out at its own expense, and will thereby suffer damage.[208]
7. As to relevance, I consider the application as it concerned category eight cognisant that it is common ground that the communication pits have never been moved.[209] In the end, I am satisfied that documents falling within the ambit of category eight are relevant. The terms upon which the utilities and services have been installed in the communication pits, and any requirements that attach to their relocation, are matters relevant to the obligation on Viva Energy to take all reasonable steps to procure the owner of the communication pits to move or relocate them, and to the damage that might be suffered by the City in undertaking works at its own expense (as pleaded at par 15 of the amended statement of claim).
8. Finally, having regard to the ambit of category eight, I consider that it is clearly defined, and the scope appropriately focussed. In determining it appropriate to exercise the discretionary power to grant Viva Energy's application in relation to category eight, I note that, among other things, I had regard to the principles in the RSC O 1 r 4A and r 4B; and I consider the forensic benefit to be derived by the granting of the application as it concerns category eight to be proportionate to the cost and delay which will flow from the City meeting this order.

Documents relating to the slip lane (construction after development) (category 9)

1. Viva Energy sought discovery of all communications and records of all discussions between the City, the various owners of the Subject Land, and/or Viva Energy regarding the construction of the slip lane after completion of the development of the Subject Land.
2. As to existence, Viva Energy submitted that the deed between the City and the Current Owner dated 21 September 2020 makes several express provisions with respect to the construction of the slip lane, from which Ms Vasic says she inferred that correspondence or other documents would have been exchanged in relation to the slip lane as part of the negotiations leading to the entry into that deed.[210]
3. Viva Energy also relied upon the email communication from Proven Project Management to the City on 14 September 2016, which referred to communications with the owner of the Subject Land at that point in time in relation to the construction of the slip lane, in the context of a greater truncation being required, and therefore more land being required to be ceded to allow for construction of a slip lane. From this, Ms Vasic inferred that additional documents within this category exist, which had not been discovered.[211]
4. Having regard to the matters deposed to by Ms Vasic (summarised above), I am fairly certain that documents that fall within the scope of the ninth category are (or were) in existence.
5. As to relevance, Ms Vasic relied upon the same matters as she set out for category five (as summarised at [198] to [199] above) to inform her belief that the category nine [212]uments were relevant.212
6. In opposition to providing further and better discovery of documents falling within the scope of category nine, among other things, Mr McLeod deposed:

(a) to his opinion that the deed between the City and the Current Owner dated 21 September 2020 is explicit as to the requirements of the Current Owner to ensure that the performance of their obligation to cede the slip lane land free of cost would not impose additional incidental burdens on them. He deposed that through that deed, the City gave the same (manifestly reasonable) assurances that Viva Energy would have been required to give if Viva Energy had performed its obligation under the 1997 Deed and undertaken the construction of the slip lane;[213]
>
> (b) to his belief that discovery of documents leading to the Current Owner and the City entering into the deed dated 21 September 2020 in the circumstances is inappropriate, and there is no relevance to any matter realistically in issue in the action;[214]
>
> (c) that in the event that the City claims as an item of damage reimbursement of the sum paid to the Current Owner to cover their expenses relating to the ceding obligation, the dealings with the owners would be appropriate and discovery of all documents relevant to that cost will be given;[215]
>
> (d) all documents which are known relating to discussion of a possible slightly greater truncation of the Subject Land for the slip lane were discovered, and the discussions were minimal because the proposal for a slightly greater truncation was not pursued beyond the initial proposal, and the area to which the Current Owner committed for ceding is the same area as proposed in the concept plan in the 1997 Deed;[216] and
>
> (e) Viva Energy has previously considered alternative plans for the slip lane which is consistent with the normal course of converting a concept plan in a development approval into an actually constructed work.[217]

7. Having given careful consideration to the pleadings, I am not persuaded by the submissions made on behalf of the City, nor the matters deposed to by Mr McLeod (a large portion of which was inadmissible submission and unfounded opinion). Submissions as to the appropriateness of the City's conduct in its engagement with the Current Owner (summarised at [229(a)] above) does not inform relevance. Also, I proceed on the basis that the assurance proffered by Mr McLeod in his submissions that the City has no further documents to produce, and Mr McLeod's hearsay evidence to that effect (summarised at [229(d)] above), is not the end of the matter, particularly as the informal lists of documents provided by the City provide sufficient ground for the rebuttal of the presumption that the City had given full discovery of the categor[218] of documents sought.218 Informed by matters of proportionality and relevance, I consider it appropriate to exercise the discretionary power to order further and better discovery of documents falling within the scope of category nine.

Documents relating to the slip lane (construction at today's standards) (category 10)

1. Viva Energy sought discovery of all documents, plans and drawings identifying the work which would now be required to construct the slip lane in accordance with development approval dated 31 January 1996 and the drawings annexed to the 1997 Deed or otherwise.
2. As to the existence of such documents, the same matters as referenced on behalf of Viva Energy in relation to category two (summarised at [154] to [156] above) informed Ms Vasic's belief as to the existence of documents within the am[219] of category 10.219
3. In addition to those matters, Ms Vasic deposed that she inferred that documents within the category must exist, otherwise there would be no standard to which Viva Energy would be required to construct the slip lane, and therefore at the very least there must be a document which adopts a published policy or standard for the construction of roads managed by the City.[220]
4. Further, Ms Vasic deposed that the City's website advertises that it is undertaking minor road construction works, including the Towns Development Program, and therefore she is of the opinion that it is highly unlikely that such a program would proceed without a written policy setting out the work required.[221]
5. Finally, Ms Vasic noted that of particular significance to this category was the existence of the City's Morley Activity Centre Plan dated 31 July 2018, which the City has not discovered but which is available on its website.[222]
6. I had regard to the submissions and affidavit evidence filed in support of and in opposition to the provision of further and better discovery of the documents which fall within the ambit of category 10. Having regard to the same, I am fairly certain that documents exist that fall within the scope of the tenth category.
7. As to relevance, Ms Vasic deposed that the documents within this category are relevant to the matters pleaded at par 15 of the amended statement of claim; pars 15 and 16 of the defence to the amended statement of claim; par 13 of the City's reply; and Viva Energy's response to the City's request for further and better particulars of defence filed 21 March 2019 (response 2).[223]
8. At the hearing of the application, counsel for Viva Energy summarised the relevance of the documents, submitting that they go to the issue of what work is now required to be performed, for example the nature of the road construction.[224]
9. As to the existence and relevance of documents within this category, Mr McLeod deposed that he had been instructed by Mr Pearson and verily believed that:[225]

(a) there is nothing known to the City that affects the standard of construction of the slip lane, or involves changes to the standard, other than cost. The standard of construction is the standard commonly applied by local governments for roads of the status of Walter Road, and the City has not carried out a codification of that standard;
>
> (b) the cost of such works is dependent on the current market costs of that work at the time it is carried out. Estimates can be made at one time of the likely cost of the work if carried out at a later time;
>
> (c) the City does not have a published policy relating to the standard of construction of such roads;
>
> (d) typically, the City provides individualised requirements on a case by case basis using the Institute of Public Works Engineers Australasia's subdivisional development guidelines, or any similar Main Roads guidelines that might be applicable, and on any such occasion, where actual reference to the guidelines is required, reference is made to the copies of such guidelines available on the internet. These are public documents which are available on the internet or from the relevant authority which published them, but are not documents in the possession of the City;[226] and
>
> (e) the development program of the City changes from year to year. As the slip lane construction cost has not been included in the City's works budget for 2021, the current or any past development program is irrelevant. Until 2020, it was not clear to the City that it would be required to carry out the work itself. It is still unclear to the City that it will need to make provision in any budget for the cost of the work to be paid from the municipal fund, relying on ratepayer revenue, as the outcome of this action may be that the cost of the works will be paid by Viva Energy in damages. For this reason, Mr McLeod also deposed that the past town development programs are irrelevant.

10. With respect to the Morley Activity Centre Plan, Mr McLeod further deposed to having been instructed by Ms Smith and Mr Pearson and verily believing that this plan is broadly textured and ordinarily would not require precise detail of the design of a proposed slip lane addition to a small portion of Walter Road, especially when the construction date and the final detailed design is uncertain, as in this case at present. Any reference to or depiction of the slip lane in the Morley Activity Centre Plan is conceptual only, and not intended as an accurate depiction of the slip lane which in due course will be constructed.[227] Further, the Morley Activity Centre Plan is indicative of intentions and possibilities in the case of future works, contemplated and envisioned at the time of preparation of it or its relevant amendment, but the City does not consider it relevant to this case and is not considered appropriate for discovery. Mr McLeod noted that in any event it is available on the City's website.[228]
11. Having given careful consideration to the pleadings, I am not persuaded by the submissions made on behalf of the City, nor the matters deposed to by Mr McLeod. The assurances proffered by Mr McLeod to the effect that the City has no further documents to produce, and Mr McLeod's hearsay evidence to that effect, is not the end of the matter, particularly as the informal lists of documents provided by the City provide sufficient ground for the rebuttal of the presumption that the City had given full discovery of the categories of documents sought.
12. At par 9(a)(iv) of the defence to the amended statement of claim, Viva Energy pleads, further or alternatively, that any extant obligation Viva Energy may have had from time to time to construct the slip lane would become spent if and when the plans and specifications referred to in par 8 of the amended statement of claim no longer complied with the laws and standards governing the design and construction of slip lanes.[229] Viva Energy's case is that the laws and standards governing the design and construction of slip lanes at the relevant location have changed,[230] and on the pleadings, I accept that previous and current standards are relevant to the matters in issue. Therefore, I am satisfied that documents falling within the ambit of category 10 are relevant to the matters in issue and ought to have been disclosed. Further, I am informed by matters of proportionality and relevance, and consider it appropriate to exercise the discretionary power to order further and better discovery of documents falling within the scope of category 10.

Documents relating to the City's damages (internal communications) (category 11)

1. Viva Energy sought discovery of all records of the City's internal meetings with respect to constructing the slip lane in accordance with the development approval dated 31 January 1996.
2. As to existence, Ms Vasic deposed that the City appeared to concede in its letter dated 18 December 2020 that documents within this category may well exist but that it had not undertaken a proper search for them.[231] Ms Vasic further deposed that the City's concession of the likely existence of relevant documents can be inferred by its acknowledgement in that letter that all documents relevant to the category would be provided in particulars of the City's damages (which had not yet been provided).[232]
3. Counsel for Viva Energy also referred to statements made on behalf of the City to the effect that, as to category 11, Viva Energy's request was unreasonably wide as it potentially covered private or personal notations made from time to time by officers or employees of the City, but had indicated that all documents relevant to category 11would be provided in particulars to the City's damages.[233] Counsel submitted that this response revealed that the City had misapprehended its obligation of discovery, as documents held by officers and employees of the City are documents within the possession of the City for the purposes of the rule.[234]
4. It was Viva Energy's position that the existence of such documents was also supported by the existence of other documents discovered by the City which contain handwritten notations and concern meetings which appeared to have been conducted between the parties at the time. Viva Energy contended that such discovery supported the inference that documents falling within the ambit of category 11 did at one time exist, and it was clear that not all such documents had been discovered.[235] Finally, Ms Vasic deposed to her belief that the City's employees and officers must have made a record of the discussions which occurred at meetings between those parties.[236]
5. As to relevance, counsel for Viva Energy noted that this category of documents concerned the obligation to complete the slip lane work and the amount that it will cost to do so.[237] Viva Energy maintained that documents falling within the scope of category 11 are relevant to the matters pleaded at par 5 of both the amended statement of claim and the defence to the same, particularly having regard to the context provided by pars 8 and 9 of both the amended statement of claim and the defence (relating to the 1997 Deed and the slip lane to be constructed pursuant to it).[238]
6. The City opposed discovery of this category of documents on two grounds. First, on the basis that the only documents known to exist in this category are communications between the City and its solicitors which are subject to legal professional privilege; and secondly, Mr McLeod had been instructed by Mr Pearson that the City had made enquiries with its employees as to any document in this category whether as records of discussions or meetings or otherwise, and no such documents had been disclosed.[239]
7. As to the first ground of opposition advanced by the City, a claim of legal professional privilege is not an answer to the obligation of the City to produce a list of relevant documents and verify the same by affidavit. As to the second ground of opposition advanced by the City, again, the assurance proffered by Mr McLeod in his submissions that the City has no documents to produce, and Mr McLeod's hearsay evidence to that effect, is not the end of the matter.
8. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of the eleventh category.
9. Having regard to this evidence, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. The matters raised on behalf of Viva Energy, summarised at [244] to [246] above, are sufficient to displace by inference the rebuttable presumption. I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings.
10. I am also satisfied that it is appropriate to exercise the discretionary power to order further discovery. Documents that fall within the scope of category 11 will be within the City's sole possession, custody and power, and will be unavailable from any other source. I also weigh in the balance consideration of proportionality, relevance and fairness in determining it appropriate to exercise the discretion.

Documents relating to the City's damages (obligation to now construct the slip lane) (category 12)

1. Viva Energy sought discovery of all documents, including communications and policies, relating to the City's obligation to now construct the slip lane.
2. As to the existence of documents that fall within the ambit of category 12, Ms Vasic referred to the Morley Activity Centre Plan, and noted that it is a document which was not discovered by the City. Ms Vasic further noted that the Morley Activity Centre Plan contemplates a different slip lane to the one set out at annexure B to the 1997 Deed. From the existence of the Morley Activity Centre Plan, which specifically refers to the intersection and slip lane the subject of this proceeding, Ms Vasic inferred that relevant documents, very likely in the form of traffic counts, surveys, and expert reports (amongst others) exist.[240]
3. As to relevance, Viva Energy contended that this category of documents is directly relevant to the pleas at par 15 of the amended statement of claim and pars 15 and 16 of the defence to the same.[241]
4. In response to Viva Energy's request for documents within this category, the City noted that it does not have an obligation (statutory or contractual) to now construct the slip lane. Rather, the City's commitment to construction of the slip lane is related to the City's perception of the necessity for construction of the slip lane in the interest of public safety in connection with the functioning of the two crossovers between the service station on the Subject Land; the public safety issue relating to the use of the two Walter Road crossovers for access and egress by large fuel transporting vehicles; and the entry and egress to and from the site by customer vehicles. It was noted on behalf of the City that any obligation of the City to construct the slip lane is an obligation only in that sense. It is not prescribed, written down or recorded in any other way, there is no document to discover that falls within the ambit of category 12.[242]
5. With respect to Ms Vasic's claim that the Morley Activity Centre Plan exists and had not been discovered, Mr McLeod deposed that, for the same reasons as summarised at [240] above, the document is not relevant to any matter in issue in [243]s action.243 He further deposed that the depiction of the slip lane at the Walter Road and Russell Street intersection in the Morley Activity Centre Plan could not reasonably be proposed to be an accurate and final depiction of the slip lane intended to be constructed, such as could be expected in the developer's final design drawings, as that is inconsistent with the broad brush nature of that plan, and its purely conceptual treatment of detail, such as th[244]lip lane.244 Further, it was the City's position that the source of the information for any depiction of the slip lane in the Morley Activity Centre Plan wa[245]ot known.245
6. Mr McLeod further deposed that the City had no further slip lane design related documents to discover, relevant to damages or otherwise.[246]
7. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of category 12. That is, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings, particularly the pleas at par 15 of the amended statement of claim and pars 15 and 16 of the defence to the amended statement of claim. The City has pleaded that it has an obligation. Documents which inform the nature of the obligation are relevant and ought be discovered, which in light of Mr McLeod's evidence, ought include those which inform necessity of construction in the interest of public safety.
8. Again, I am satisfied that it is appropriate to exercise the discretionary power to order discovery. In this regard, I am particularly informed by the relevance of the documents to the matters in issue, proportionality and fairness. I am also cognisant that it appeared that documents falling within category 12 would likely be in the City's sole possession, custody and power (particularly given the City's clarification as to what it meant by use of the word 'obligation' in its pleadings).

Documents relating to the City's damages (road maintenance costs) (category 13)

1. Viva Energy sought discovery of all documents relating to the City's costs from 1997 to present of maintaining roads such as the proposed slip lane.
2. As to existence, Ms Vasic deposed to having reviewed the City's website and to having noted that the City's budget is published, which reveals the City's actual expenditure for the previous year. Viva Energy's position was that this demonstrates that records of expenditure are created and kept.[247]
3. Ms Vasic also referred to the City's letter dated 18 December 2020, in which the City asserted that 'the cost is understood to be so minimal as to not require or justify assessment'. Again, Viva Energy contended that this communication suggested that not only are at least some records in existence, but that someone within the City has made a positive assessment with respect of them.[248]
4. Finally, Ms Vasic deposed that evidence of the existence of documents within this category can further be inferred from the City's advertised Road Resurfacing Program and Traffic Safety Improvement Works which appear on its website.[249]
5. As to relevance, Ms Vasic deposed that the documents within the ambit of category 13 are relevant to pars 15(b)(iv) and 16 of the defence to the amended statement of claim, where Viva Energy pleads that the costs of refurbishing any constructed slip lane must be taken into account by way of set off.[250]
6. The City opposed discovery on the basis that its records of actual expenditure from previous years and anticipated expenditure from a current year concerning road maintenance costs were not relevant to the question of what the cost of maintaining a portion of road (such as the contemplated slip lane in the present case) would have been.[251]
7. By his affidavit, Mr McLeod provided further background to the City's assertion in the letter dated 18 December 2020 that 'the cost is understood to be so minimal as to not require or justify assessment'. Mr McLeod deposed that the assertion was grounded upon the opinion of Mr Pearson, based on his many years' experience of road construction and maintenance work and costs.[252] Mr McLeod further deposed that there was no document known to the City which verified or contradicted the information provided by Mr Pearson that a road portion such as the slip lane in the present case would require no maintenance other than resurfacing in time, but the resurfacing would not be required until after approximately 15 years of use, and then the cost would be approximately 1% of the cost of construction of the slip lane.[253] He further deposed that there is no document the City could identify that documented the information provided by Mr Pearson, and thus no such document is available for discovery.[254]
8. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of category 13.
9. The evidence of Ms Vasic provides a basis upon which I can be satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. I am also satisfied that the documents sought are relevant and ought to have been disclosed when regard is had to the pleadings, particularly the pleas at to pars 15(b)(iv) and 16 of the defence to the amended statement of claim, which pleads the need to take into account a set off for the costs of refurbishing any constructed slip lane. The City's obligation to give discovery on affidavit is not met by Mr McLeod's assurances and hearsay evidence.
10. Again, I am satisfied that it is appropriate to exercise the discretionary power to order further discovery. The likelihood that documents falling within category 13 would likely be in the City's sole possession, custody and power was a matter which weighs in favour of the exercise of discretion.

Documents relating to the City's damages (installation of subsequent additional underground services) (category 14)

1. Viva Energy sought discovery of all documents, including communications and records, regarding the additional telecommunications pits which were installed subsequent to the execution of the 1997 Deed, as shown on Plan No. SK003 dated 2019 provided by McLeods Lawyers to HWL Ebsworth on 11 May 2020.[255]
2. As to existence, the same matters as are set out for category eight (as summarised at [217] to [218] above) also informed Ms Vasic's belief with respect to category 14, and to the extent that any further documents are discovered by the City in response to category eight, it was submitted that the existence of internal communications regarding those do[256]ents may be inferred.256
3. As to relevance, in the submission of counsel for Viva Energy, Plan No. SK003 demonstrated that there are more underground services in the land than there were before, and documents that fall within the scope of category 14 would inform Viva Energy's understanding as to what other infrastructure had been or is being installed.[257]
4. Ms Vasic also relied upon the same matters as she set out for category eight (as summarised at [221] above) to inform her belief that the category 14 documents we[258]relevant.258
5. The City opposed discovery of this category of documents on two grounds. First, on the basis that the City has no knowledge of any requirement or proposal for installation of subsequent additional underground services connected with the slip lane; and secondly, there are no documents to discover in this category.[259]
6. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of category 14. That is, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence and that the documents sought are relevant and ought to have been disclosed. The terms upon which the utilities and services have been installed in the communication pits subsequent to the execution of the 1997 Deed, and any requirements that attach to their relocation, are matters relevant to the obligation on Viva Energy to take all reasonable steps to procure the owner of the communication pits to move or relocate them, and to the damage that might be suffered by the City in undertaking works at its own expense (as pleaded at par 15 of the amended statement of claim).
7. Finally, having regard to the ambit of category 14, I again consider that it is clearly defined, and the scope appropriately focussed. In determining it appropriate to exercise the discretionary power to grant Viva Energy's application in relation to category 14, I note that, among other things, I had regard to the principles in the RSC O 1 r 4A and r 4B. On balance, I consider the forensic benefit to be derived by the granting of the application as it concerns category fourteen is proportionate to the cost and delay which will flow from the City meeting this order.

Documents relating to the City's damages (road funding) (category 15)

1. Viva Energy sought discovery of any communications between the City and the State or Federal governments regarding road funding for the City in the period since 1996.
2. With respect to the existence of documents falling within the scope of the final category of documents sought, Ms Vasic deposed that by its letter dated 18 December 2020, the City objected to responding to (or providing discovery of) this category on the basis that it is irrelevant to the proceeding, but the City did not assert that no such documents exist.[260] Ms Vasic also stated that she inferred the existence of such documents from the publicised road works on the City's website, and the matters disclosed in the Morley Activity Centre Plan.[261]
3. As to relevance, it was submitted on behalf of Viva Energy that documents with this category are relevant to the question of what the City's actual loss is, taking into account actual funding.[262] To the extent that such documents relate to Walter Road or Russell Street, Ms Vasic deposed that they will be relevant to the damages claimed by the City at par 15 of the amended statement of claim. More generally, however, if such documents showed that a significant portion of the City's road funding were provided by third parties, that would also be relevant to the City's claim for damages.[263]
4. In response to the same, the City maintained that it had no documents within this category which can be discovered and raised four points.
5. First, while the City, like all local governments in Western Australia, endeavours each year to obtain Federal or State grants for roads, Mr McLeod deposed to having been instructed by Mr Pearson and verily believing that the City does not know of any case where funding has been provided for the provision of a slip lane the need for which arises from the activity of commercial enterprises adjoining the relevant road such as the present.[264]
6. Secondly, the City had not sought, and Mr McLeod was instructed by Mr Pearson that the City could confidently expect not to receive, any Federal or State grant funds for the construction of a slip lane where the City holds an agreement for the funding to be supplied by a developer, and where the City is actively pursuing payment by that developer, such as in the present case.[265]
7. Thirdly, there are no documents in this category relevant to funding for slip lane construction which can be discovered.[266]
8. Fourthly, the City does not receive funding for roads, whether slip lanes or otherwise, from any other third parties, other than developers in a similar position to Viva Energy in the present case.[267]
9. Having regard to the affidavit evidence relied upon and the submissions made on behalf of the parties, I am fairly certain that there are other relevant documents which ought to have been discovered that fall within the scope of the final category.
10. It is clear from the submissions advanced on behalf of the City, and the matters deposed to by Mr McLeod at pars 39(a) to (d) of his affidavit sworn on 18 May 2021, that the City had sought to narrow the ambit of category 15, and depose to there being no documents within the narrower ambit. However, having regard to the evidence of Ms Vasic, I am satisfied that there are reasonable grounds for being fairly certain that the documents sought are (or were) in existence. I am also satisfied that the documents sought are relevant and ought to have been disclosed.
11. I do not consider the ambit of category 15 as framed by Viva Energy as unreasonably wide, having regard to the pleaded case of the City and Viva Energy. Proportionality does not weigh against the exercise of discretion, and again I am satisfied that it is appropriate to exercise the discretionary power to order further discovery.

1. For the reasons set out above, the City's application will be refused.
2. As to the application of Viva Energy, it will be granted as I am satisfied that, among other things, the grant of Viva Energy's application is necessary for the fair determination of the issues in contention in this proceeding.
3. I will hear the parties as to the final orders and as to costs, noting that the RSC O 66 r 47(3) provides that the party against whom an order for discovery is made must pay the costs of the application, unless the court otherwise orders.

Sch A - sch A to the City's application (as amended at the hearing)

In this request terms used have the following meanings:

'Defendant' refers to The Shell Company of Australia Limited and its successor, Viva Energy Australia Ltd and Viva Energy Australia Pty Ltd (ACN 004 610 459);

'document' includes all things falling within the definition of 'document' in Order 26 rule IA of the Rules of the Supreme Court 1971;

'Property' means the land being Lot 1146 on Plan 3401 the subject of Certificate of Title Volume 2019 Folio 856, and being No. 60 Russell Street, located at the intersection of Walter Road and Russell Street, Morley.

The period covered by this request is February 1993 1995 to July 2018, and the request relates to documents in that period that have not already been discovered by the Defendant.

Any plan specification report or communication of any kind or any note or memorandum, prepared for or relating to the design, or a proposal for the development of or for the development or use of, a service station and/or car wash at the Property, or relating to traffic crossovers between the Property and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Property.

Those documents are requested in relation to the following architects:

• Ken Paterson Architects;
• Dryka & Partners;
• Oldfield Knott Architects,

and any principal, employee or other person representing any of those architects.

Any plan drawing specification report submission quotation or tender, or communication of any kind, or any note or memorandum prepared for or relating to the design, or a proposal for development of, or for the development or use of, a service station and/or car wash, or relating to traffic crossovers between the Property and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Property.

Those documents are requested in relation to the following planning consultants:

• Greg Rowe & Associates or the Rowe Group;
• BSD Planning Consultants,

and any principal, employee or other person representing any of those planning consultants.

Any plan drawing report submission quote or tender, or communication of any kind, or any note or memorandum prepared for or relating to the design, or a proposal for development of, or for the development or use of a service station and/or car wash, or relating to traffic crossovers between the Property and Walter Road and/or the provision or design of a slip lane in Walter Road adjacent to the Property, or otherwise relating to traffic movements or traffic safety at the intersection of Walter Road and Russell Street, or relating to the convenient and/or safe operation of the crossovers between the Property and Walter Road.

Those documents are requested in relation to the following engineers and traffic consultants:

and any principal, employee or other person representing any of those engineers or traffic consultants.

Any plan diagram drawing or sketch, and any report, or any communication of any kind, or any note or memorandum prepared for or relating to the design or provision of the slip lane in Walter Road adjacent to the Property, or relating to the location, design or construction of crossovers between the Property and Walter Road.

Any communication of any kind between the Defendant or any representative of the Defendant, and the owner or owners or any representative of the owner or owners from time to time of the Property, in relation to the design or development of the service station on the Property or relating to the provision of a slip lane in Walter Road adjacent to the Property, or any note or memorandum relating to the same.

Any communication of any kind between the Defendant and Telstra Corporation relating to the relocation of Telstra communication pits in connection with the proposal for construction of a slip lane in Walter Road adjacent to the Property.

Any communication of any kind between the Defendant or any representative of the Defendant and Main Roads Western Australia in relation to the construction of proposal for construction of a slip lane in Walter Road adjacent to the Property, or the construction and operation of crossovers from the Property to Walter Road, or otherwise in relation to traffic management at the intersection of Walter Road and Russell Street, Morley.

Any communication of any kind between Michael, Whyte & Co Solicitors and the Defendant in regard to the preparation or the terms of the Deed which was ultimately dated 15 January 1997 between the Plaintiff, the Defendant and the owner of the Property.

In this Schedule, capitalised words have the meaning set out below:

1. the City means the Plaintiff.
2. the Development means the development of the Subject Land during the period 1995 to 1997.
3. Development Approvals means the development approvals granted by the City for the Development dated 29 November 1995, 31 January 1996 and 4 December 1996.
4. the Relevant Requirements means:

(a) the ceding of the portion of the Subject Land required to construct a slip lane along Walter Road;
>
> (b) the relocation of Telstra Communication Pits (as that term is used in the Plaintiff's Amended Statement of Claim) to allow for the construction of the slip lane along Walter Road;
>
> (c) the movement and construction of cross overs on Walter Road and Russell Street;
>
> (d) construction of a slip lane contemplated by the conditions to the Development Approvals; and
>
> (e) the design, drawings and specifications of (a) to (d) above.

5. the Request means the request sent by the Defendant to the Plaintiff on 12 June 2020, of the categories of documents sought by way of further and better discovery.
6. Slip Lane has the meaning set out in the Plaintiff's Statement of Claim.
7. Subject Land has the meaning set out in the Plaintiff's Statement of Claim.
8. the Owner means A.C.N. 065 643 343, being the registered proprietor of the Subject Land between 1 November 1994 to 11 February 1997.

A reference to a party includes a reference to that party's agent and representatives.

Documents and attachments referred to in documents in the Plaintiff's Affidavit of Discovery sworn 28 January 2020, including but not limited to notes and minutes taken of the City's Planning Meeting of 14 November 1995 (referred to in PD 9).

The City's written policies, procedures, guidelines and the like relating to/giving rise to the Relevant Requirements, including but not limited to:

(a) the relevant Town Planning Scheme, and any relevant draft town planning scheme not then in effect;

(b) by-laws and gazettes, including Gazette dated on or about 20 January 1996 (identifying resumption of land from the corner of Walter Rd and Russell St);

(c) any written basis for the requirements imposed or sought to be imposed by the Development Approvals by the City's Director for Technical Services; and

(d) any written basis for the requirements imposed or sought to be imposed by the Development Approvals by the City's Engineering Department.

Documents regarding Development Approval dated 31 January 1996

To the extent not already discovered, all documents relating to the City's Development Approval dated 31 January 1996 that refer or relate to the Relevant Requirements, including but not limited to:

(a) any recommendation or other internal document leading to or regarding the Development Approval and the conditions set out therein;

(b) all communications between the City's office holders, employees and third parties leading to or relevant to the Development Approval and the conditions set out therein; and

(c) all communications between the City's office holders, employees and third parties, regarding the plans, drawings and specifications relevant to the Development Approval.

Documents regarding Development Approval dated 4 December 1996

To the extent not already discovered, all documents relating to the City's Development Approval dated 4 December 1996 that refer or relate to the Relevant Requirements, including but not limited to:

(a) any recommendation or other internal document leading to or regarding the Development Approval and the conditions set out therein;

(b) all communications between the City's office holders, employees and third parties leading to or relevant to the Development Approval and the conditions set out therein; and

(c) all communications between the City's office holders, employees and third parties, regarding the plans, drawings and specifications relevant to the Development Approval.

Documents regarding fulfilment of the Development Approvals and the Development

All documents following completion of the Development relating to or recording communications or discussions between the City, the Owner, any subsequent owner of the Subject Land, Viva and any party affected by the Relevant Requirements (including but not limited to Main Roads WA, Telstra, and the State Energy Commission of Western Australia/Western Power) with respect to the Relevant Requirements.

To the extent not already discovered, all communications between the City and the Owner/owner of the Subject Land regarding the obligations set out in Condition 34 (as that term is used in the Plaintiff's Amended Statement of Claim) of the Development Approval dated 31 January 1996 and the Deed including, specifically, ceding the land required to construct the Slip Lane.

To the extent not already discovered, all documents after completion of the

Development, including communications and records of all discussions between the City, the Owner/owner of the Subject Land and/or Viva regarding the ceding of a portion of the Subject Land for the purposes of the construction of the Slip Lane.

All documents with respect to installation of the Communications Pits including but not limited to:

(a) any notices issued from Telstra to the City regarding installation; and

(b) any communications / consents between Telstra and the City.

All communications and records of all discussions between the City, the Owner/owner of the Subject Land, and/or Viva regarding the construction of the Slip Lane after completion of the Development.

All documents, plans and drawings identifying the work which would now be required to construct the Slip Lane in accordance with Development Approval dated 31 January 1996 and the drawings annexed to the Deed or otherwise.

All records of the City's internal meetings with respect to constructing the Slip Lane in accordance with the Development Approval dated 31 January 1996.

All documents, including communications and policies, relating to the City's obligation to now construct the Slip Lane.

All documents relating to the City's costs from 1997 to present of maintaining roads such as the Slip Lane.

All documents, including communications and records, regarding the additional telecommunications pits which were installed subsequent to the execution of the Deed, as shown on the Plan (No. SK003) dated 2019 provided by McLeods to HWL Ebsworth on 11 May 2020.

Any communications between the City and the State or Federal governments regarding road funding for the City in the period since 1996.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : CITY OF BAYSWATER -v- VIVA ENERGY AUSTRALIA PTY LTD [No 2] [2022] WASC 384 (S)

Practice and procedure - Costs - Applications for further and better discovery - Whether the applicable cost scales should be lifted - Turns on own facts

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA)

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA)

Legal Profession Uniform Law Application Act 2022 (WA), s 141

City of Bayswater v Viva Energy Australia Pty Ltd [2021] WASC 373

City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384

Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S)

(This judgment was delivered extemporaneously and has been edited from the transcript.)

1. Two applications came before me to be determined. The plaintiff and the defendant had each applied for further and better discovery from the other. For reasons delivered on 15 November 2022, I concluded that it was appropriate to refuse the plaintiff's application and to grant the defendant's application for further and better discovery: City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [2022] WASC 384.
2. In the final paragraph of my published reasons, I indicated that I would hear the parties as to the form of orders and as to costs, noting that the Rules of the Supreme Court 1971 (WA) O 66 r 47(3) provides that the party against whom an order for discovery is made must pay the costs of the application, unless otherwise ordered by the court.
3. It is not in contest as between the parties that the general rule is that costs follow the event, such that the successful party should recover its costs.[268] The contest before me as to the appropriate costs outcome concerns the application of well-established principles to the circumstances of each application.
4. The defendant seeks that the plaintiff pay the defendant's costs of and incidental to the plaintiff's application and the defendant's application, with such costs to include but not to be limited to:

(a) the hearing on 23 June 2021;
>
> (b) the plaintiff's further submissions in lieu of oral submissions dated 25 June 2021;
>
> (c) the defendant's supplementary submissions dated 29 June 2021;
>
> (d) the directions hearing on 15 November 2022; and
>
> (e) the contested costs orders and the costs of and incidental to the hearings on 24 November 2022 and 8 December 2022.

5. The defendant initially sought that its costs of prosecuting its application and defending the plaintiff's application be fixed in the sum of $95,000 and payable forthwith. In light of the limited evidentiary foundation for fixing costs in that amount, counsel for the defendant advised the court that an order fixing costs in that amount was not pressed.[269] That concession was appropriately made in light of the evidence before the court and the amount sought to be recovered.
6. In the usual run of routine matters parties can expect that rather than being taxed, costs will be fixed by reference to the schedule of standard costs orders for interlocutory applications at Consolidated Practice Direction 4.7.1.1, where the figures suggested have been calculated by reference to the time required in a typical, or median, instance.[270] In this case, the defendant submits that the applications were not typical and the figures suggested in the schedule do not reflect the work the defendant had been required to undertake.[271]
7. While initially framed in the alternative, the defendant seeks that its costs be paid by the plaintiff in an amount to be assessed if not agreed, and pursuant to s 141(3) and s 141(4) of the Legal Profession Uniform Law Application Act 2022 (WA), that those costs be fixed or assessed without regard to the limits imposed by item 10(a) of table B of the Legal Profession Supreme and District Courts Contentious Business Determination 2020 (WA) (2020 cost scale), and item 10(b) of table B of the Legal Profession Supreme and District Courts Contentious Business Determination 2022 (WA) (2022 cost scale).
8. In support of its position on costs, the defendant relies upon a minute of proposed orders filed on 23 November 2022 (an amended version of which was provided to the court on 8 December 2022); submissions filed on 23 November 2022; the affidavit of Stephanie Pin Jian Tan sworn on 23 November 2022; and the oral submissions made by counsel. I have had regard to the same in determining the appropriate costs order.
9. The plaintiff does not accept that the order proposed by the defendant is appropriate or warranted in the circumstances of the applications heard and determined. As to costs, the plaintiff seeks orders in the terms promoted in its minute of proposed orders filed on 6 December 2022, that is:
   1. Pursuant to Order 66 rule 47(3) of the Rules of the Supreme Court 1971 (WA), the plaintiff pay the defendant's costs of and incidental to the defendant's application on a party and party basis, including the hearings on 15 November 2022, 24 November 2022 and 8 December 2022, to be taxed in accordance with item 10 of the relevant Cost Determination, if not agreed.
   2. The costs of and incidental to the plaintiff's application for further and better discovery be in the cause.
   3. Alternatively to para.2 hereof, pursuant to Order 66 rule 43(3) of the Rules of the Supreme Court, the plaintiff pay the defendant's costs of and incidental to the plaintiff's application on a party and party basis to be taxed in accordance with item 10 of the relevant Cost Determination, if not agreed.
10. In support of its position on costs, the plaintiff relies upon the minute of proposed orders filed on 6 December 2022, as well as submissions filed on 6 December 2022 and the oral submissions made by counsel. I have had regard to the same in determining the appropriate costs order.

1. In circumstances where the defendant was wholly successful in prosecuting its application and also in its opposition to the plaintiff's application, costs ought to follow the event. That is, it is appropriate that the defendant recover its costs from the plaintiff as to each application, to be taxed if not agreed. It is also appropriate in the circumstances that the plaintiff pay forthwith to the defendant those costs.
2. I make a number of observations in relation to this disposition.
3. First, as to the defendant's successful application, there is no reason for the court to make an order other than as contemplated by the Rules of the Supreme Court O 66 r 47(3). The plaintiff acknowledged by proposed order 1 of the plaintiff's minute that those costs ought to be recovered by the defendant. The controversy as between the parties is limited to whether the costs of the defendant's application ought be taxed without regard to the limits imposed by the applicable cost scale if not agreed.
4. I am satisfied that in all of the circumstances costs ought follow the event and the defendant, having successfully prosecuted its application, is entitled to its costs to be paid forthwith. As to whether the limits imposed by the applicable costs scale ought be lifted, I deal with that below.
5. Secondly, on the materials before me, I am not satisfied that I am in a position to fix costs. The concession made by counsel for the defendant in this regard is appropriately made. The materials before me are not adequate to provide a proper foundation to fix an amount. If costs cannot be agreed, the quantum is best determined in this matter by a taxing officer.
6. Thirdly, as to the costs of and incidental to the plaintiff's unsuccessful application for further and better discovery, I am not satisfied that it is appropriate that they be in the cause.
7. In so finding, I have had regard to the submissions made on behalf of the plaintiff at paragraphs 11 to 16 of its written submissions. I am not persuaded by the same.
8. At par 13 of the plaintiff's submissions, the plaintiff accepts that the court has a general discretion to award costs on dismissal of the plaintiff's application, but submitted that the situation was not as clear as the costs obligation of a party against whom an order for discovery is made pursuant to O 66 r 47(3) of the Rules of the Supreme Court.[272] I understand the plaintiff to contend that the circumstances justify a cost order in relation to the plaintiff's application that does not reflect the general rule that costs follow the event.
9. As to the circumstances referenced on behalf of the plaintiff, counsel noted that I considered certain aspects of the plaintiff's application to be 'finely balanced', and that in the disposition of the application, discretion was exercised against the plaintiff.[273] I do not consider these to be circumstances sufficient to depart from the general rule.
10. Counsel for the plaintiff submits that it would be appropriate that the court order that the costs of and incidental to the plaintiff's application for further and better discovery be in the cause because the plaintiff had consented to the making of such an order by the learned Master on 12 November 2021 in the context of the plaintiff's successful application for separate trials of liability and quantum.[274] The fact that the plaintiff may have consented to such an order in the context of an entirely different application I find to be in no way persuasive.
11. Counsel for the plaintiff further submits that it may also be relevant to the disposition on costs that the defendant will have the benefit of an order for costs on the defendant's application in any event, under the orders proposed/consented to by the plaintiff.[275] It is not. The defendant was called to prosecute its application and also to defend the plaintiff's application. To the extent that there were efficiencies created by the concurrent programming of the applications and the hearing of the applications on the same day, such efficiencies will no doubt be taken into account by the taxing officer.
12. No circumstances exist that call for a departure from the usual position that costs follow the event. I do not consider it appropriate for the costs of the plaintiff's application to be in the cause.
13. What remains to be determined is whether the limits imposed by the applicable costs scale ought be lifted in relation to either application.

1. I turn now to whether it is appropriate that pursuant to s 141(3) of the Legal Profession Uniform Law Application Act, the costs of the applications be taxed if not agreed without regard to the limits imposed by item 10(a) of table B of the 2020 cost scale and item 10(b) of table B of the 2022 cost scale.
2. Section 141(3) is in identical terms to s 280(2) of the Legal Profession Act 2008 (WA), which section was discussed in Sino Iron Pty Ltd v Mineralogy [No 2] [2017] WASCA 76 (S), particularly at [11] ‑ [15]. I had regard to the principles expressed by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy [No 2] as being applicable to an application made pursuant to s 280(2), in the disposition of this matter pursuant to s 141(3).
3. I proceed on the basis that s 141(3) operates to give the successful party the opportunity to recover those costs which have been reasonably and properly incurred where, in the court's opinion, the scale is inadequate because of the unusual difficulty, complexity or importance of the matter.[276]
4. I further proceed on the basis that s 141(3) is protective of the successful party in litigation, and serves the administration of justice, by facilitating, within the limits imposed by the statutory criteria, the operation of the general principle that a successful party is entitled to its costs of the litigation. I also note that an order under s 141(3) does not, of itself, mean that a successful party will recover all of the costs it has incurred, or seeks from the unsuccessful party. It remains the task of a taxing officer to consider the reasonableness and necessity for the work undertaken and to make a judgment about the remuneration reasonably required. I understand these principles to be accepted by the parties.
5. As to the statutory criteria, I also understand it to be common ground as between the parties that the court may make an order under s 141(3) if satisfied of two things. First, that the amounts allowed under the relevant scale item are inadequate in the sense that there is a fairly arguable case that the bill of costs may tax out at an amount which is greater than the scale limit. Secondly, that the inadequacy of the costs allowable arises because of the unusual difficulty, complexity or importance of the matter. These elements are to be addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.[277]
6. I proceed on the basis that a special costs order will not be warranted simply by reference to the effort of the successful party, which may have been disproportionate in all of the circumstances. I also proceed on the basis that I do not understand the defendant to seek that the maximum hourly and daily rates for solicitors and counsel be raised.[278]
7. As to the first criteria, I find it to be a fairly arguable case that each of the defendant's bills may be taxed and certified in amounts greater than the scale limit, having regard to the maximum amount allowable. In so concluding, I have had regard to the evidence of Ms Tan as to the costs incurred by the defendant, and to the scale limits.
8. Item 10(a) of the 2020 cost scale is for proceedings in chambers, other than on motions and originating process. Under that item, allowance is made for 2 days preparation and 1 day hearing, by either senior counsel or counsel. Item 10(b) of the 2022 cost scale is for attending on a reserved judgment in chambers (including preparation, consideration of reasons for decision and all necessary work and attendances to obtain final orders).
9. Under item 10(a) of the 2020 costs scale, a maximum allowance of $13,530 is made for counsel, referable to 2 days preparation and 1 day of hearing. No separate allowance is made for preparation of the case, for preparation of written submissions, or for the attendance of instructing legal practitioners.
10. Having regard to the evidence of Ms Tan as to the costs incurred by the defendant, while acknowledging that some amount may properly be allocated to item 27 rather than item 10, I am satisfied that the scale allowance is inadequate in the sense that there is a fairly arguable case that the defendant's bills may tax out at amounts which are greater than the scale limit. While two days preparation will ordinarily be adequate, the applications before me were made more complex by the manner in which the plaintiff prosecuted its application and opposed the application of the defendant (which is discussed further below). Further, while the applications were heard in the course of one hearing day, this was only possible because the court had the benefit of the comprehensive written submissions filed on behalf of the defendant in advance of the hearing. I accept that if written submissions had not been filed, the hearing of the applications would most likely have been adjourned part heard, with the potential for at least a half or full day to follow. I also note that at the end of the hearing day the plaintiff sought, and I granted, leave to file further written submissions on the basis that there was insufficient time to make those submissions at the hearing and the defendant was granted leave to reply. No separate allowance is made in item 10 for submissions filed prior to a hearing, nor for submissions filed after a hearing in lieu of further oral submissions.
11. I again note that the making of an order under s 141(3) does not mean that the defendant will recover all of the costs that it has incurred or, indeed, the costs it seeks to recover from the plaintiff as the unsuccessful party in a taxation.
12. As to the second criteria, I have considered whether the inadequacy of the costs allowable arises because of the unusual difficulty, complexity, or importance of the matter. I approach the same as matters of impression rather than matters of detailed evaluation, precision, or science and, in so doing, I find the second criteria to have been satisfied.
13. In so finding, I am cognisant that the applications are interlocutory and for further and better discovery. The principles to be applied in the disposition of the applications before me were well settled and such applications are routinely determined. I weigh the same in the balance.
14. Despite this, the following matters contribute to my finding that the second criteria is satisfied.
15. Mr McLeod had sworn two affidavits with respect to the applications. The first was sworn on 26 March 2021 in support of the plaintiff's application; the second was sworn on 18 May 2021 in opposition to the defendant's application.
16. Mr McLeod elected to attach to his affidavit of 26 March 2021 10 documents that the defendant had long asserted were subject to without prejudice privilege.[279] The application for discovery was made more complex by the attachment of documents subject to that unresolved claim of privilege, and by the plaintiff seeking a 'preliminary determination' of the same in the course of the hearing of the applications for further and better discovery. As my reasons reflect, I was in the end not prepared to make a 'preliminary determination' as to whether 10 of 55 communications listed in the schedule to the amended statement of claim were privileged communications.[280]
17. It is evident from the materials filed on behalf of the defendant that the manner in which the plaintiff prosecuted its application and sought to defend the application made by the defendant, caused significant time to be spent by the defendant's representatives in an attempt to understand the materials filed, and to apply structure and principle to the same. The preparation for and hearing of the applications was also made more complicated by the inclusion in Mr McLeod's affidavit of inadmissible submissions and opinion.[281] The affidavits filed on behalf of the plaintiff conflated evidence, inadmissible opinion and submission, and made the hearing of the applications more difficult.
18. The complexity is also apparent in the reasons published. Determination of the disputed matters underlying each of the applications was a considerable task, and the court was assisted by significant work performed on behalf of the defendant. The issues raised on the pleading, I also accept, are complicated. The plaintiff's view that this is a straightforward, one‑issue proceeding does not take into account the defences pleaded and the complexity of the matters in issue when considered as a whole.
19. I am also cognisant that the matters in issue concern events that occurred over 20 years ago. While the documentary record is always important, the defendant says that in this case, the documentary record is crucial for its ability to fairly defend itself, and for this reason proper and complete discovery have assumed a particular importance. I give this submission considerable weight.
20. I also accept that the affidavit evidence and submissions filed on behalf of the defendant in respect of the applications were comprehensive. My impression is that the materials likely consumed considerable preparation time by the defendant's solicitors and counsel.
21. Finally, as noted above, while the applications took one hearing day, I accept the defendant's account that this was only due to many matters having been addressed in the written submissions filed. I accept that if written submissions had not been filed, the hearing would have been adjourned part heard, with the potential for at least a half or full day to follow. The volume of disputed matters underlying each of the applications meant that oral submissions were not concluded within the one hearing day, and warranted the grant of leave to file further written submissions at the conclusion of the hearing.
22. On balance, I accept the complexity of the matters in issue, the volume of evidence and submissions prepared, the volume of inadmissible and irrelevant evidence filed on behalf of the plaintiff, the annexing of documents the subject of an unresolved claim of privilege, and the importance of discovery to the disposition of this proceeding are reasons why the costs of the application are likely to have been considerable and in excess of the maximum allowance allowed under the scale. I accept that the s 141(3) order sought by the defendant is necessary. Without it, there is a real prospect that the defendant will not be able to recover reasonable costs of the applications.
23. I find the statutory criteria to have been satisfied. Of course, that is not the end of the matter. Even where orders are made under s 141(3) of the Legal Profession Uniform Law Application Act, it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.[282]
24. The costs of the defendant associated with the contested costs order, including the defendant's costs of preparing the documents referred to at [8] above and the involvement and attendance of counsel, are to be paid by the plaintiff (to be taxed if not agreed), to be treated as falling within the ambit of item 10(b) of the relevant costs scale.
25. Finally, as to the making of an order that contemplates taxation rather than an assessment of costs if quantum was not agreed, I note that counsel for the defendant did not oppose the same.[283] I proceed on the basis that while Consolidated Practice Direction 4.7.2 contemplates the provisional assessment of bills of costs at the discretion of the taxing officer, it is appropriate that the court order that the costs be taxed if not agreed, reserving the question of whether a bill is suitable for provisional assessment to the discretion of the taxing officer as contemplated in Consolidated Practice Direction 4.7.2 pars 4 and 5.

1. There were matters of complexity and difficulty that arose in each of the applications that justify the making of the orders sought on behalf of the defendant, and I am also satisfied that the inadequacy of the scale arises by reason of complexity and importance of the defendant's application. In all of the circumstances, it is fair that the court exercise its discretion to award costs in accordance with the minute promoted on behalf of the defendant as marked up on 8 December 2022. Costs are to be payable forthwith once taxed, if not agreed. There is no reason to depart from the practice of this court to order the payment of costs forthwith.
2. As to costs, I therefore make the following order:

The plaintiff pay forthwith the defendant's costs of and incidental to the plaintiff's application, and of and incidental to the defendant's application, respectively, with such costs to include (but not be limited to):

(a) the hearing on 23 June 2021;

(b) the plaintiff's further submissions in lieu of oral submissions dated 25 June 2021;

(c) the defendant's supplementary submissions dated 29 June 2021;

(d) the directions hearing on 15 November 2022; and

(e) the contested costs orders and the costs of and incidental to the hearings on 24 November 2022 and 8 December 2022,

to be taxed if not agreed, and pursuant to section 141(3) and (4) of the Legal Profession Uniform Law Application Act 2022 (WA), those costs be taxed without regard to the limits imposed by item 10(a) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA) and item 10(b) of Table B of the Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] See, for example, affidavit of I Vasic sworn 31 March 2021, IVI5, IV18; affidavit of DW McLeod sworn 26 March 2021, DM26.

[3] Amended statement of claim par 1; defence to amended statement of claim par 1.

[4] Amended statement of claim par 2; defence to amended statement of claim par 2.

[5] Amended statement of claim par 3; defence to amended statement of claim par 3.

[6] Defence to amended statement of claim par 13(d); reply par 8(c).

[7] Affidavit of I Vasic sworn 31 March 2021 par 13.

[8] Amended statement of claim par 4; defence to amended statement of claim par 4.

[9] Amended statement of claim par 5; defence to amended statement of claim par 5(a); reply par 1(a).

[10] Amended statement of claim par 5; defence to amended statement of claim par 5(b); reply par 1(b).

[11] Amended statement of claim par 5; defence to amended statement of claim par 5(c); reply par 1(c).

[12] Amended statement of claim par 7; defence to amended statement of claim par 7; reply par 3.

[13] Defence to amended statement of claim par 5(e)(ii); reply par 1(e).

[14] Affidavit of DH Pearson sworn 21 June 2021 pars 2 - 6, DP1; the City's supplementary submissions in opposition to Viva Energy's application par 6(a); Viva Energy's supplementary submissions in support of its application par 5.

[15] Amended statement of claim par 6; defence to amended statement of claim par 6(a)(i); reply par 2.

[16] Defence to amended statement of claim par 6(a)(ii); reply par 2.

[18] Defence to amended statement of claim par 5(e)(iii); reply par 1(e).

[19] Defence to amended statement of claim par 8(b); reply par 4.

[21] Defence to amended statement of claim par 9(a).

[22] Amended statement of claim par 9; reply par 5(b).

[23] Amended statement of claim par 10; defence to amended statement of claim par 10; reply par 6.

[24] Amended statement of claim par 11; defence to amended statement of claim par 11.

[25] Amended statement of claim par 12; defence to amended statement of claim par 12; reply par 7.

[26] Amended statement of claim par 13; defence to amended statement of claim par 13(a).

[27] Amended statement of claim par 13; reply par 8(a).

[28] Defence to amended statement of claim par 13(b).

[29] Defence to amended statement of claim par 13(c).

[31] Amended statement of claim par 14.

[32] Defence to amended statement of claim par 14.

[33] Amended statement of claim par 15.

[34] Defence to amended statement of claim par 15.

[35] Defence to amended statement of claim par 16.

[36] Defence to amended statement of claim par 17(a).

[37] Defence to amended statement of claim par 17(b).

[38] Defence to amended statement of claim par 17(c).

[39] Defence to amended statement of claim par 17(d).

[40] Reply par 9. See also ts 19 (23 June 2021).

[41] Affidavit of I Vasic sworn 31 March 2021, IV10.

[42] Attached to an email communication sent from McLeods Lawyers to HWL Ebsworth on 10 March 2020: see the affidavit of I Vasic sworn 31 March 2021, IV11 (page 92).

[43] Affidavit of I Vasic sworn 31 March 2021, IV12.

[44] Chvojka v Lockwood [2019] WASC 440 [5] - [6].

[45] Perpetual Trustees Co Ltd v Burniston [2012] WASC 26 [29] ‑ [32].

[46] Perpetual Trustees Co Ltd v Burniston [33].

[47] Singh v Friedman [2013] WASC 78 [3] ‑ [4]; Roe v The State of Western Australia [2013] WASC 130 [10] ‑ [13]; Lanco Resources Australia Pty Ltd v Griffin Energy Group Pty Ltd [2016] WASC 322 [16] ‑ [18].

[49] ts 9, 39 (23 June 2021); Viva Energy's submissions in opposition to the City's application pars 5 ‑ 14; affidavit of DW McLeod sworn 26 March 2021, DM16 - DM25.

[50] As described at [22] above.

[51] The correspondence between the parties on 10 November 2008 and 24 April 2009 were attached to the affidavit of I Vasic sworn 20 April 2021 and marked IV26 and IV27, respectively.

[52] As described at [23] above.

[56] The City's submissions in support of its application par 12.

[57] Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd [2003] WASCA 11 [91].

[62] The City's submissions in support of its application par 6.

[63] The City's submissions in support of its application pars 7 - 8.

[64] The City's submissions in support of its application pars 9 - 11.

[65] The City's submissions in support of its application par 9.

[70] The City's submissions in support of its application par 10; reply par 9.

[71] Viva Energy's submissions in opposition to the City's application par 26. Although counsel for Viva Energy made further submissions as to why the documents sought were not relevant to this issue (see pars 23 ‑ 25 of Viva Energy's submissions in opposition to the City's application), these fell away due to the reduced scope of the City's application.

[74] Viva Energy's submissions in opposition to the City's application par 17, referring to the affidavit of I Vasic sworn 20 April 2021 pars 6 - 9, IV26, IV27.

[77] Viva Energy's submissions in opposition to the City's application par 28.

[78] Affidavit of DW McLeod sworn 26 March 2021, DM26.

[79] Viva Energy's submissions in opposition to the City's application pars 31 - 32.

[80] Viva Energy's submissions in opposition to the City's application par 32.

[81] The City's submissions in support of its application par 32.

[82] The City's submissions in support of its application par 26.

[84] Viva Energy's submissions in opposition to the City's application par 34, referring to the City's submissions in support of its application par 33.

[85] Viva Energy's submissions in opposition to the City's application par 44.

[86] Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [37].

[87] As summarised at [75(3)] above.

[88] Excerpt reproduced at [71] above.

[89] Viva Energy's submissions in opposition to the City's application par 32.

[90] Affidavit of DW McLeod sworn 26 March 2021, DM26.

[91] Viva Energy's submissions in opposition to the City's application par 26.

[95] The City's submissions in support of its application par 15(a); affidavit of DW McLeod sworn 26 March 2021, DM10, DM11.

[97] Viva Energy's submissions in opposition to the City's application par 26.

[99] Viva Energy's submissions in opposition to the City's application par 26.

[100] The City's submissions in support of its application pars 17, 25; affidavit of DW McLeod sworn 26 March 2021, DM12, DM25.

[101] Viva Energy's submissions in opposition to the City's application par 26.

[103] Viva Energy's submissions in opposition to the City's application par 26.

[104] ts 51 (23 June 2021); see also ts 52 (23 June 2023).

[105] Viva Energy's submissions in opposition to the City's application par 26.

[106] The City's submissions in support of its application par 20; affidavit of DW McLeod sworn 26 March 2021, DM15.

[109] Viva Energy's submissions in opposition to the City's application par 26.

[110] As is visible from the cover: see affidavit of DW McLeod sworn 26 March 2021, DM1.

[111] The City's submissions in support of its application par 18.

[112] ts 63 (23 June 2021); Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352 ‑ 353.

[113] Absolute Analogue Inc v Sundance Resources Ltd [2008] WASC 259 [30] ‑ [32]; Rafferty v Amaca Pty Ltd [2017] WASC 18 [62].

[114] Which derives its name from Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Co [1993] FCA 557; (1993) 46 FCR 428.

[115] Viva Energy's submissions in opposition to the City's application pars 15 - 21.

[116] Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501.

[117] In support of this proposition, counsel cited Brewer v Colonial Portfolio Services Ltd [2007] WASC 22 [5].

[118] Rafferty v Amaca Pty Ltd [63]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [No 2] [2006] FCA 931; (2006) 155 FCR 150 [31] ‑ [33].

[121] Local Government Act s 3.1.

[122] Viva Energy's submissions in support of its application par 16; affidavit of I Vasic sworn 31 March 2021, IV2.

[123] Viva Energy's submissions in support of its application pars 17 - 19.

[124] Local Government (Administration) Regulations reg 14.

[125] In Viva Energy's submissions in support of its application at par 19, counsel particularly drew the court's attention to s 5.94(f), s 5.94(g), s 5.94(h), s 5.94(k), s 5.94(l), s 5.94(n), s 5.94(p) and s 5.94(q) of the Local Government Act.

[126] Viva Energy's submissions in support of its application par 24.1.

[127] Viva Energy's submissions in support of its application par 24.2.

[128] Viva Energy's submissions in support of its application par 24.3.

[129] Viva Energy's submissions in support of its application par 24.4; Rafferty v Amaca Pty Ltd [14].

[130] Affidavit of I Vasic sworn 31 March 2021, IV9.

[131] Defence to amended statement of claim par 15.

[132] Viva Energy's submissions in support of its application pars 31 ‑ 33, by reference to the principles discussed by Le Miere J in Leighton Contractors v Public Transport Authority (WA) [2007] WASC 65 [3]; and Allanson J in Singh v Friedman [2013] WASC 78 [13]; see also affidavit of I Vasic sworn 31 March 2021 pars 5 ‑ 19.

[135] Affidavit of I Vasic sworn 31 March 2021 par 25.1.1, IV13; ts 68 - 69 (23 June 2021).

[136] Affidavit of I Vasic sworn 31 March 2021 par 25.1.2, IV14; ts 68 - 69 (23 June 2021).

[137] Affidavit of I Vasic sworn 31 March 2021 par 25.1.3.

[138] See the affidavit of I Vasic sworn 31 March 2021, IV15 and IV16.

[139] Affidavit of I Vasic sworn 31 March 2021 par 25.1.4.

[140] Viva Energy's submissions in support of its application par 29.1

[141] Affidavit of I Vasic sworn 31 March 2021 par 25.1.5; amended statement of claim par 5; defence to amended statement of claim par 5.

[142] Affidavit of DW McLeod sworn 18 May 2021 par 18(d).

[143] Reproduced at sch B to these reasons.

[144] Affidavit of I Vasic sworn 31 March 2021 par 25.2.1.

[145] Affidavit of I Vasic sworn 31 March 2021 par 25.2.2, IV17; see also ts 70 - 71 (23 June 2021).

[146] Affidavit of I Vasic sworn 31 March 2021, IV17 (page 136).

[147] Defence to amended statement of claim par 5(e)(iii).

[148] Affidavit of I Vasic sworn 31 March 2021 pars 25.2.4 - 25.2.8; see also ts 69 (23 June 2021).

[149] Amended statement of claim pars 7 and 15.

[150] Defence to amended statement of claim pars 15(b)(iv) ‑ (vii) and 16.

[151] Defence to amended statement of claim pars 5(e)(iii), 9(a)(iv), 13(c).

[152] Amended statement of claim par 12; Viva Energy's response to the City's request for further and better particulars of defence filed 21 March 2019, response 2.

[153] Amended statement of claim par 10; defence to amended statement of claim par 10.

[154] Affidavit of DW McLeod sworn 18 May 2021 par 19(a).

[155] Affidavit of DW McLeod sworn 18 May 2021 par 19(b).

[156] Affidavit of DW McLeod sworn 18 May 2021, DM11.

[157] Affidavit of DW McLeod sworn 18 May 2021 par 20; the City's supplementary submissions in opposition to the Viva Energy's application par 13(1).

[159] Affidavit of DW McLeod sworn 18 May 2021 par 20.

[160] See in particular the defence to amended statement of claim pars 9(a)(iv), 13(c), 15(b)(v), 15(b)(vii).

[161] Reproduced at sch B to these reasons.

[162] Affidavit of DW McLeod sworn 18 May 2021 pars 27(f), 28(b).

[163] See the letter from McLeods Lawyers to HWL Ebsworth dated 18 December 2020 at annexure IV9 to the affidavit of I Vasic sworn 31 March 2021.

[164] Affidavit of I Vasic sworn 31 March 2021 par 25.3.1.

[165] Affidavit of I Vasic sworn 31 March 2021 par 25.3.2, IV18 and IV19.

[166] Affidavit of I Vasic sworn 31 March 2021 par 25.3.4.

[167] Ms Vasic refers at par 25.3.5 to category seven, which I understood to be a reference to category seven of the Request, as defined in sch A to Viva Energy's application (reproduced at sch B to these reasons).

[168] Affidavit of DW McLeod sworn 18 May 2021 par 27(a).

[169] Affidavit of DW McLeod sworn 18 May 2021 par 28(a).

[170] Affidavit of I Vasic sworn 31 March 2021 par 25.3.3.

[171] Affidavit of I Vasic sworn 31 March 2021 pars 25.3.6 and 25.3.7.

[172] Amended statement of claim pars 7 and 13; defence to amended statement of claim pars 7, 9 and 13.

[173] In this respect, Ms Vasic referred to the handwritten notation found in attachment IV19 to her affidavit.

[174] Affidavit of I Vasic sworn 31 March 2021 pars 25.4.1 and 25.4.2.

[175] Affidavit of I Vasic sworn 31 March 2021 pars 25.4.3 and 25.4.4.

[176] Affidavit of DW McLeod sworn 18 May 2021 par 29(a).

[177] Affidavit of DW McLeod sworn 18 May 2021 par 29(b); see also the City's supplementary submissions in opposition to Viva Energy's application par 13(3).

[178] Affidavit of DW McLeod sworn 18 May 2021 par 29(c).

[179] Affidavit of I Vasic sworn 31 March 2021 pars 25.3.6, 25.3.7 and 25.4.4.

[180] Amended statement of claim pars 7 and 13; defence to amended statement of claim pars 7, 9 and 13.

[181] In this respect, Ms Vasic referred to the handwritten notation found in attachment IV19 to her affidavit.

[182] Affidavit of I Vasic sworn 31 March 2021, IV20.

[183] Affidavit of I Vasic sworn 31 March 2021 par 25.5.1.

[184] Affidavit of I Vasic sworn 31 March 2021 par 25.5.2, IV21; ts 75 (23 June 2021).

[186] Affidavit of DW McLeod sworn 18 May 2021 par 30(a); the City's supplementary submissions in opposition to Viva Energy's application par 13(4).

[187] Viva Energy's submissions in support of its application par 29.3; Viva Energy's supplementary submissions in support of its application par 7.

[188] Affidavit of I Vasic sworn 31 March 2021 pars 25.5.3 ‑ 25.5.5.

[189] Affidavit of I Vasic sworn 31 March 2021, IV22.

[190] As defined in sch A of Viva Energy's application.

[191] Affidavit of DW McLeod sworn 18 May 2021 par 30(c).

[192] Amended statement of claim par 8.

[193] Affidavit of I Vasic sworn 31 March 2021 par 25.6.1.

[194] Affidavit of I Vasic sworn 31 March 2021 par 25.6.2, IV9.

[195] Viva Energy's submissions in support of its application par 29.4; affidavit of I Vasic sworn 31 March 2021 par 25.6.3.

[196] Viva Energy's supplementary submissions in support of its application par 6.

[197] Affidavit of DW McLeod sworn 18 May 2021 par 31.

[199] The City's supplementary submissions in opposition to Viva Energy's application par 6(a); affidavit of DH Pearson sworn 21 June 2021.

[200] Affidavit of I Vasic sworn 31 March 2021 par 25.7.1, IV1 (at annexure B), IV12.

[201] Telecommunications Act 1997 (Cth) sch 3, div 2 and div 5.

[202] Affidavit of I Vasic sworn 31 March 2021 par 25.7.2.

[203] Affidavit of I Vasic sworn 31 March 2021 par 25.7.3, IV23.

[204] Affidavit of DW McLeod sworn 18 May 2021 par 32(a), citing the Land Administration Act 1997 (WA) s 55(1).

[205] Affidavit of DW McLeod sworn 18 May 2021 par 32(b).

[206] Affidavit of DW McLeod sworn 18 May 2021 par 32(c); the City's supplementary submissions in opposition to Viva Energy's application par 13(6).

[207] Affidavit of I Vasic sworn 31 March 2021 IV12.

[208] Affidavit of I Vasic sworn 31 March 2021 pars 25.7.4 and 25.7.5, referring to the amended statement of claim par 15 and the defence to the amended statement of claim par 17. See also ts 76 - 77 (23 June 2021).

[209] Defence to the amended statement of claim par 10; reply par 6.

[210] Affidavit of I Vasic sworn 31 March 2021 par 25.8.1.

[211] Affidavit of I Vasic sworn 31 March 2021 par 25.8.2.

[212] Affidavit of I Vasic sworn 31 March 2021 par 25.8.3

[213] Affidavit of DW McLeod sworn 18 May 2021 par 33(c).

[214] Affidavit of DW McLeod sworn 18 May 2021 par 33(d).

[215] Affidavit of DW McLeod sworn 18 May 2021 par 33(e).

[216] Affidavit of DW McLeod sworn 18 May 2021 par 33(f).

[217] Affidavit of DW McLeod sworn 18 May 2021 par 33(g), DM5.

[218] Viva Energy's submissions in support of its application par 24.2.

[219] Affidavit of I Vasic sworn 31 March 2021 par 25.9.1.

[220] Affidavit of I Vasic sworn 31 March 2021 par 25.9.2.

[221] Affidavit of I Vasic sworn 31 March 2021 par 25.9.3.

[222] Affidavit of I Vasic sworn 31 March 2021 par 25.9.4, IV24.

[223] Affidavit of I Vasic sworn 31 March 2021 par 25.9.5

[225] Affidavit of DW McLeod sworn 18 May 2021 pars 34(a) ‑ (c), 34(e).

[226] The City's submissions in opposition to Viva Energy's application par 2.

[227] Affidavit of DW McLeod sworn 18 May 2021 par 34(f).

[228] Affidavit of DW McLeod sworn 18 May 2021 par 34(g).

[229] Defence to amended statement of claim par 10; reply par 6.

[230] Defence to amended statement of claim par 15.

[231] Affidavit of I Vasic sworn 31 March 2021 par 25.10.1.

[232] Affidavit of I Vasic sworn 31 March 2021 par 25.10.2.

[233] Viva Energy's submissions in support of its application par 24.3.1.

[234] Viva Energy's submissions in support of its application par 24.3.1; affidavit of I Vasic sworn 31 March 2021, IV18 and IV19.

[235] Affidavit of I Vasic sworn 31 March 2021 par 25.10.3, IV18.

[236] Affidavit of I Vasic sworn 31 March 2021 par 25.10.4.

[238] Affidavit of I Vasic sworn 31 March 2021 par 25.10.5.

[239] Affidavit of DW McLeod sworn 18 May 2021 par 35; the City's supplementary submissions in opposition to Viva Energy's application par 13(9).

[240] Affidavit of I Vasic sworn 31 March 2021 par 25.11.1.

[241] Affidavit of I Vasic sworn 31 March 2021 par 25.11.2.

[242] Affidavit of DW McLeod sworn 18 May 2021 par 36(a).

[243] Affidavit of DW McLeod sworn 18 May 2021 par 36(b)(i).

[244] Affidavit of DW McLeod sworn 18 May 2021 par 36(b)(ii).

[245] Affidavit of DW McLeod sworn 18 May 2021 par 36(b)(ii).

[246] Affidavit of DW McLeod sworn 18 May 2021 par 36(b)(iv); the City's supplementary submissions in opposition to Viva Energy's application par 13(10).

[247] Affidavit of I Vasic sworn 31 March 2021 par 25.12.1, IV25.

[248] Affidavit of I Vasic sworn 31 March 2021 par 25.12.2.

[249] Affidavit of I Vasic sworn 31 March 2021 par 25.12.3.

[250] Affidavit of I Vasic sworn 31 March 2021 par 25.12.4.

[251] Affidavit of DW McLeod sworn 18 May 2021 par 37(a).

[252] Affidavit of DW McLeod sworn 18 May 2021 par 37(b).

[253] Affidavit of DW McLeod sworn 18 May 2021 par 37(b).

[254] Affidavit of DW McLeod sworn 18 May 2021 par 37(c); the City's supplementary submissions in opposition to Viva Energy's application par 13(11).

[255] Which was attached as IV12 to the affidavit of I Vasic sworn 31 March 2021.

[256] Affidavit of I Vasic sworn 31 March 2021 pars 25.13.1 and 25.13.2.

[258] Affidavit of I Vasic sworn 31 March 2021 par 25.13.3.

[259] Affidavit of DW McLeod sworn 18 May 2021 par 38; the City's supplementary submissions in opposition to Viva Energy's application par 13(12).

[260] Affidavit of I Vasic sworn 31 March 2021 par 25.14.1.

[261] Affidavit of I Vasic sworn 31 March 2021 par 25.14.2, IV24.

[263] Affidavit of I Vasic sworn 31 March 2021 par 25.14.3.

[264] Affidavit of DW McLeod sworn 18 May 2021 par 39(a).

[265] Affidavit of DW McLeod sworn 18 May 2021 par 39(b).

[266] Affidavit of DW McLeod sworn 18 May 2021 par 39(c).

[267] Affidavit of DW McLeod sworn 18 May 2021 par 39(d).

[268] Rules of the Supreme Court O 66 r 1(1).

[269] ts 178 - 179 (24 November 2022); ts 202 (8 December 2022).

[270] Consolidated Practice Direction 4.7.1 pars 8 and 10.

[271] ts 158 - 159 (15 November 2022).

[274] Plaintiff's submissions par 15; and City of Bayswater v Viva Energy Australia Pty Ltd [2021] WASC 373.

[276] Sino Iron Pty Ltd v Mineralogy [No 2] [11].

[277] Sino Iron Pty Ltd v Mineralogy [No 2] [12].

[279] My understanding of the context in which the privilege claim arose is set out in City of Bayswater v Viva Energy Australia Pty Ltd [No 2] at [46] - [47].

[280] City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [45] - [53] and [76] - [78].

[281] City of Bayswater v Viva Energy Australia Pty Ltd [No 2] [54], where the concern raised on behalf of the defendant as to the affidavits sworn by Mr McLeod is recorded.

[282] Sino Iron Pty Ltd v Mineralogy [No 2] [11].