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[2020] QSC 122
mixed. Orders: (a) strike out the words "to the extent of any inconsistency only" and "and which was thereafter varied from time to time by the matters particularised in paragraph 8 of the Statement of Claim"...
Brown J heard an application by Civil Mining & Construction to strike out or require particulars of parts of Alexanderson's currently pleaded case. The court held that: (a) ambiguous qualifying language in the reply that suggested residual oral terms continued after a written contract should be struck out where no varied terms were pleaded; (b) the plaintiff's primary pleadings which relied on multiple alleged access delays still failed to plead the necessary causal links between particular delays and particular standby events, so the alternative global causation paragraph (47A) was struck out with liberty to re-plead; and (c) the plaintiff must provide particulars explaining the basis for its asserted 'reasonable rates' in schedules F1 and F2 and particulars of work done for certain mass-haul/variation claims. The matter was listed for review for further orders and costs (see [62]).
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This was an interlocutory strike-out and particulars application in the Supreme Court of Queensland (Brown J) on pleadings advanced by Alexanderson Earthmover Pty Ltd against Civil Mining & Construction Pty Ltd concerning civil works at the Wiggins Island Coal Export Terminal. The plaintiff's Fourth Further Amended Statement of Claim (4FASOC) alleged, among other things, that the defendant failed to provide sufficient access to multiple parts of the site during several distinct time periods, and that those "Access Delays" caused:
The defendant sought orders striking out parts of the pleadings and/or for further particulars on three bases:
The plaintiff pleaded reliance on a partly oral/partly written agreement allegedly formed on 13 October 2011 alongside a written contract containing an entire agreement clause: the defendant argued that these pleadings were inconsistent, vague and untenable (Complaint 1) (see [6]–[13]).
The plaintiff persisted in pleading causation on a global basis (as had earlier been struck out by Ryan J in 2019): the defendant argued the 4FASOC still failed to identify causal links between particular delays and particular standbys, delay to completion or particular costs; paragraph 47A attempted an alternative global plea that was ambiguous (Complaint 2) (see [14]–[51]).
The plaintiff failed to particularise the factual basis for its "reasonable rate / fair market rate" claims in Schedules F1 and F2 and failed to plead costs or particulars of the work actually done for the mass-haul claims (Complaint 3) (see [52]–[61]).
Brown J's orders were mixed: he struck certain ambiguous language from the reply, struck out paragraph 47A of the 4FASOC with liberty to re-plead, and ordered the plaintiff to provide particulars of the basis for the "reasonable rate" figures in Schedules F1 and F2 and particulars of the work actually performed in respect of paragraphs [126] and [133]. The matter was listed for review and further orders including costs (see [62]).
The judgment is governed by three core pleading principles emphasised at the outset: pleadings must identify the issues, disclose an arguable cause of action, and sufficiently inform the other side of the case it must meet (Brown J, [3]). From those principles the court applied two main strands of reasoning.
Overall, Brown J's approach reflects a refusal to allow pleading ambiguity or global causation without satisfying the preconditions for a global claim, balanced against an acceptance that a properly framed global claim may be permissible and that the plaintiff should be allowed to re-plead where appropriate (see [49]–[51]).
Before this decision (and as articulated in prior authorities cited by Brown J), courts have recognised:
After Brown J's decision:
This decision therefore tightens the requirement for specificity in pleadings in complex construction disputes and clarifies that contractual formulations (like a standby clause) do not exempt a plaintiff from pleading causative facts.
"[A pleading must still identify the issues, disclose an arguable cause of action and sufficiently inform a party of the case it must meet.]" ([3])
Plain English: A statement of claim must be clear enough so the other side understands what has to be defended.
"Pleading the preconditions to a contractual entitlement to standby does not relieve a party of having to establish a causal link to the amount claimed as compensation under the contract." ([39])
Plain English: Even if the contract says you get paid for 'standby' in defined situations, you still have to plead what caused the standby and why those causes are the defendant's fault.
"Paragraph 47A ... is defective ... It should be amended to properly plead the global claim which is permissible only where it is impossible or impracticable to disentangle part of the loss ... and where that situation has not been brought about by the delay or other conduct on the part of the claimant." ([49])
Plain English: You can plead a 'global' claim only if you cannot separate out each cause of loss and you did not create that inability; any such global claim must be clearly and properly pleaded, you cannot put it in as an ambiguous fallback.
"The Plaintiff should be able to provide some particulars even if it cannot provide a particular of the figure nominated as the reasonable rate." ([59])
Plain English: If you claim a 'reasonable rate', you must explain how you got to that figure and what work it covers even if you cannot give a final calculation yet.
"I determined that the reference to 'to the extent of any inconsistency' ... should be struck out." ([11])
Plain English: The court removed vague words that suggested the earlier oral agreement might still apply in places, because no terms were actually pleaded to make that true.
As this is the judgment itself, the text records how Brown J treated prior authorities. Brown J:
Subsequent treatment by later courts (beyond the judgment text) is not reported within this judgment; practitioners should check later decisions for how Brown J's refinement of requirements for pleading global causation and particulars has been applied.
Can a global causation plea be sustained where the claimant has conceded inability to disentangle causes only because of the defendant's conduct, but the underlying pleadings remain imprecise? Brown J accepted in principle that a global claim can be advanced but insisted on strict pleading, how lower courts will assess sufficiency of re-pleaded global claims remains fact-sensitive (see [48]–[51]).
The judgment leaves undecided whether the entire agreement clause definitively bars reliance on the 13 October 2011 agreement; Brown J declined to decide this at interlocutory stage and left it for trial (see [9], [11]). The precise evidentiary material necessary to demonstrate the written contract operated prospectively will be litigated further.
The boundary between a contractual entitlement measured by schedule-of-rates (standby clause) and a damages claim remains delicate. Brown J held contractual form does not alter the need to plead causation (see [39]–[41]), but the parties' strategic options for framing standby claims to minimise particularity requirements may be tested on re-pleading.
The court ordered particulars of the 'reasonable rate' and of the works performed; whether expert evidence later tendered can cure earlier pleading deficiencies or whether a more detailed pleading will be required remains unresolved (see [56], [57], [61]).
The judgment touches on pleading global claims in the alternative and indicates that it is "difficult" for such a global claim to be pleaded in the alternative because of its distinct preconditions (see [49]). Exactly how that principle will operate in practice when claimants wish to keep multiple pleaded alternatives open is a point likely to be revisited.
Final reminder: This is a structured analysis of the court's judgment based solely on the judgment text provided. It is legal information, not legal advice. I can make mistakes; before you act on or rely on this, or use any draft pleading or response, get a qualified Australian lawyer to check it.
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - GENERALLY - where the defendant contends that part of the plaintiff's pleading is inconsistent and ambiguous - where a previous strike out application had been brought - where orders were made to strike out parts of the pleadings - where the plaintiff re-pleaded aspects of the struck out pleadings in similar terms - whether the plaintiff can reasonably plead global causation - whether a global claim can be pleaded in the alternative where the plaintiff had not pleaded material facts or provided particulars as to the basis for "reasonable cost" or "fair market rate" - where the basis for the "reasonable cost" and "fair market rate" were within the knowledge of the plaintiff - whether the particulars are inadequate - whether the particulars are ambiguous, irrelevant or confusing - whether the particulars support the allegations made
Uniform Civil Procedure Rules 1999 (Qld), r 149, r 155, r 161, r 162
Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited [2019] QSC 259, cited
Danidale Pty Ltd v Abigroup Contractors Pty Ltd [2007] VSC 391, considered
Civil Mining & Construction Pty Ltd v Wiggins Island Coal
Export Terminal Pty Ltd [2017] QSC 85, considered
Lacaba Ahden Australia Pty ltd v Buycrys (Australia) Pty Ltd [2006] QSC 147, distinguished
LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200 [2004] QSC 229, followed
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, considered
McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd [2011] QSC 178, distinguished
Santos Ltd v Fluor Australia Pty Ltd [2017] QSC 153, distinguished
[1] The Defendant brought a strike out application which raised three categories of complaint for resolution by this court, in relation to the plaintiff's current statement of claim and the reply. The first category related to the pleading of a partly oral and partly written agreement preceding the entry into a written agreement that contained an entire agreement clause, whereby the relevant pleadings in the statement of claim and the reply were said to be inconsistent, vague and untenable particularly given an entire agreement clause. The second category related to pleading an entitlement to standby, damages for delayed completion and a consequential damages claim, each of which were said to have been caused directly or indirectly by access delays to various parts of a site. The Defendant contends that those parts of the statement of claim fail to remedy defects arising out of pleading global causation which was the subject of a previous strike out application that succeeded on the basis that the causation was pleaded on a global basis. The Defendant also contends that the amended statement of claim with an alternative plea of the preconditions for making a global claim is also defective. The third complaint is that the Plaintiff has failed to particularise "reasonable cost at fair market rates" relating to an additional haulage claim.
[2] The dispute relates to claims arising out of work done by the Plaintiff, as a subcontractor of the Defendant to complete civil works. The contract was a schedule of rates contract.[1] The Defendant was a head contractor engaged under contract by Wiggins Island Coal Export Terminal Pty Ltd to complete civil and building work at the Wiggins Island Coal Export Terminal, which has already been the subject of extensive litigation.
[3] As has been reiterated in a number of recent cases, case management practices adopted in particularly complex cases such as the present, inevitably result in orders made for evidence to be delivered in advance of trial. In light of that development, strike out applications are generally discouraged based on technical pleading complaints.[2] However, they are appropriate where the criticisms of the pleading significantly impact upon the proper preparation of the case and its presentation at trial.[3] A pleading must still identify the issues, disclose an arguable cause of action and sufficiently inform a party of the case it must meet.
[4] In the present case, the Statement of Claim is now the Fourth Further Amended Statement of Claim (4FASOC). A three day hearing, followed by written submissions, occurred last year which resulted in a significant judgment, included applications where both parties sought to strike out parts of or particulars of the Second Further Amended Statement of Claim (2FASOC) and the Amended Defence.[4] Both had limited success.
[5] In the present case, the Defendant seeks to strike out the parts of the pleading complained of on the basis that the 4FASOC and Further Amended Reply fail to disclose a reasonable cause of action, do not sufficiently inform the Defendant of the case to be met, and would, if permitted to proceed to trial, impose an unreasonable and unfair burden on the Defendant that would tend to prejudice, embarrass or delay a fair trial.[5] Orders are also sought to strike out particulars, and for the provision of further particulars.[6]
[6] The particular complaints of the Defendant were in relation to the pleading of a partly oral, partly written contract said to have arisen on 13 October 2011 in the 4FASOC and paragraph 4B of the Further Amended Reply. It was said that the allegations made regarding the entry into an alleged partly written, partly oral contract on 13 October 2011 and then a subsequent execution of a formal contract in November 2011 (but dated 13 October 2011), were inconsistent and objectively ambiguous so as to warrant striking out. In particular, paragraph 4B of the Further Amended Reply had pleaded that the written executed contract only replaced the terms of the earlier contract "to the extent of any inconsistency only". The Defendant further raised an allegation that the terms of the contract formed on 13 October 2011 had been varied from time to time, but no pleading of the varied terms was contained in the 4FASOC. It was also contended that the allegations could not stand in light of the entire agreement clause.
[7] There was also a complaint made by the Defendant that the Plaintiff had failed to identify alleged oral terms in the earlier agreement, or plead any material facts in support of the allegation that the executed contract operated prospectively.
[8] I determined that part of the application during the hearing which I had hoped to incorporate in this judgement, but unfortunately the transcript with my reasons is presently still unavailable. In brief, I did not consider that it was appropriate to strike out paragraph 8 of the 4FASOC. The Plaintiff's case is that a contract was formed on or about 13 October 2011 and that the contract was a first or fourth category of Masters v Cameron.[7] The formation of the agreement was said to be significant by the Plaintiff and necessary because of other matters raised by the Defendant in its defence and counterclaim, even though its causes of action relied on the terms of the written contract. It also contends that the 13 October agreement was relevant to the construction of terms in the formal contract. In those circumstances it was arguable that notwithstanding the entire agreement clause in the formal contract that the 13 October agreement could be relied upon for the reasons identified by the plaintiff.
[9] I determined that it was not appropriate for the court to decide whether the entire agreement clause precluded the pleading that the written contract operated prospectively and that should be left for trial. The Plaintiff's case was that it operated prospectively by virtue of the fact that it was executed in November 2011. However, the Defendant contends that the backdating of the contract to 13 October 2011 and presence of the entire agreement clause supports the fact that the written agreement was to have a retrospective effect. Given the dispute between the parties and particularly that the Plaintiff alleges an agreement existed from 13 October 2011, whereas the Defendant contends that there was no contract until the written terms of the agreement had been fully agreed, I did not consider that it was appropriate to strike the pleading out in 4B(b)(ii) that the contract operated prospectively. However, I indicated that the Plaintiff should provide particulars of the basis upon which it said the agreement operated prospectively, which appears to rely on the fact that the written contract was not executed until a later date and that there had been the prior written agreement that had been formed on 13 October 2011.
[14] The Defendant complains that the Plaintiff has not remedied the defect in its Second Further Amended Statement of Claim (2FASOC) which resulted in Ryan J striking out particular parts of the 2FASOC.
[15] Her Honour struck out with leave to re-plead, paragraphs 36 - 38 (including particulars) of the plaintiff's 2FASOC on the basis that the pleading of causation was deficient:[9]
"[171] In my view, there is an element of global causation pleaded in AE's Access Delay Claims, even if it is not intended to suggest that there was any interaction between the three (or four) different delays alleged to have caused the Standbys and even if the separate Access Delays flowed from the one direction to mobilise.
[172] Paragraph 36 does not plead one cause of the delayed use of AE's resources (such as the direction to mobilise) - it pleads, as the cause, three access delays and the requirement to excavate rocky fill. Indeed, the global nature of the claim is exemplified by the use of the phrase "in whole or in part" in paragraph 36 (which is discussed below).
[173] I consider it necessary for AE to identify, in relation to each item of stood-by plant, the Access Delay which it asserts caused the plant to be stood-by or, if it cannot do so, to plead that it is either impossible or impracticable to undertake that task."
[16] Her Honour also struck out [40] of the 2FASOC, which alleged that the Defendant's delays caused a delay in completion by the Plaintiff of the works "in whole or in part".[10] The Defendant had complained that the pleading was also making a global claim, on the basis that the pleading did not identify what was referred to as "in part". Her Honour also struck out [44] of the Further Amended Statement of Claim (FASOC) which sought damages by reason of the Defendant's delays and consequential delays, but which failed to plead the causal link between the Defendant's delays and the damages claimed.[11]
[17] The Defendant complains that the amended pleading in the 4FASOC, namely paragraphs 36A - 36D, 39B - 40A, 44A - 44C, and 47A, has not remedied the defect of the failure to properly plead causation which resulted in the striking out of the paragraphs above. The Defendant submits that the Plaintiff has still failed to plead the relevant causative link.
[18] Further, the Defendant contends that the Plaintiff has now pleaded paragraph 47A in the alternative case, which purports to assert a global claim which does not accord with the well-established preconditions for a party to plead a global claim. The Defendant contends that the present pleading adds more confusion, ambiguity and uncertainty to the case the Defendant is required to meet as:
- (a) The pleading of the allegations in the alternative to a multitude of previous paragraphs is objectively ambiguous and does not cure the making of previous allegations on a global basis; and
- (b) Instead of the required unequivocal statement for pleading a case based on global causation, the allegation that the causative links cannot be separately identified is impermissibly qualified on the ambiguous basis that the Plaintiff is unable to plead those causative links "more than has already been pleaded in paragraphs 28 - 47".
[19] It is uncontentious that a plaintiff generally must plead the causal connection between an alleged breach and a loss or contractual entitlement. As was stated by Douglas J in LBS Holdings P/L v The Body Corporate for Condor Community Title Scheme 13200:[12]
"... [F]acts must be set out which lead to a reasonable inference that the acts complained of and the loss claimed stand to each other in the relation of cause and effect and that the plaintiff must plead the necessary facts showing that causal link ..."
[20] However, in the context of construction cases in particular, it is permissible for a claim to be pleaded as a global claim in the circumstance where it is impractical to disentangle that part of the loss which is attributable to each head of claim and the situation has not been brought about by delay or other conduct of the claimant.[13]
"66. The general structure of the amened allegations in the 4FASOC of various delays in access to different parts of the site over different periods of time is:
(a) that the contract is expressly, or by implied terms, required the defendant to provide and maintain for the plaintiff's benefit "Sufficient Access", now extensively amended to include alleged requirements to provide access to different parts of the site b particular haul roads being constructed at particular locations, which obligations are each pleaded as being "further and in the alternative" to each other. The new allegations are for the GP haul road, the OLC haul road and access to the rail receival area which have some common Features including an alleged requirement to provide a crossing of Beales Creek on the site (paragraph 26);
(b) a contractual entitlement to payment of Standby Rates for any "stop work, delay commencement of work" or standby for any reason beyond the (plaintiff's) control" (paragraph 26(d));
(c) that failure to ensure Sufficient Access would be a breach of contract entitling the plaintiff to payment at the Standby Rates, further and alternatively inclement weather, any act or omission of the defendant or anything else beyond the plaintiff's control would entitle it to payment at the Standby Rates (paragraph 27);
(d) that various directions were given by the defendant for the plaintiff to mobilise to site even though areas were not available for work and that the construction of the Bunds relied on access been given to those areas pleaded in paragraph 26 (paragraphs 28 to 32);
(e) that the construction program under the head contract contained obligations requiring the defendant to give access to various parts of the site by the programmed dates (paragraphs 32B to 32D);
(f) that the defendant failed to give the plaintiff sufficient access to numerous different areas of the site over varying periods between October 2011 and April 2012 by specific access dates applicable to each work area (paragraphs 33 to 35);
(g) each of those access delays and pleaded in paragraphs 33 to 35 and other delays in providing varying degrees of access to GPN haul Road, OLC haul road (referred to in these submission as the Access Delays) are now divided into four periods of time in which the various delays in access to different parts of the site prevented Alexanderson from utilising the planted mobilised to site in those various areas to carry out work, identified as:
(i) the No Access Period between 15 October 2011 and 23 November 2011 (paragraphs 33 A);
(ii) the 1st Partial Access Period between 23 November 2011 and 16 December 2011 (paragraphs 33B to 33D);
(iii) the 2nd Partial Access Period between 16 December 2011 and 2 February 2012 (paragraphs 34A and 34B); and
(iv) the 3rd Partial Access Period between 2 February 2011 and 18 February 2012;
(h) in each "period" the plaintiff allege the defendant failed to provide sufficient access to a number of different areas of the site and because of all those delays the plaintiff could not utilise all of its resources (see paragraphs 33A, 33D, 34C and 34F)
(i) the delay to two particular parts of the site is alleged to have caused the standby of specific plant in those areas (paragraphs 35 to 35D and 35E to 35F);
(j) "pursuant to" the directions and the various Access Delays alleged to have occurred in each of the access "periods" pleaded in paragraphs 33A, 33D and 34C, that the defendant delayed the plaintiff's use of its plant, equipment and personnel to perform the work, which Alexanderson says were the sole cause of the plant being placed on standby (paragraphs 36 to 36C). The hours of standby are said to be calculated by taking the available hours per day less the hours of productive utilisation;
(k) that pursuant to all the matters pleaded in numerous earlier paragraphs, including paragraphs 26 to 36C, as a consequence of the Access Delays the plaintiff is entitled under the contract to payment of approximately $1.6 million, across three delayed access periods;
(l) that the various delayed access periods delayed completion of the work by a certain number of days (paragraphs 39A and 39B);
(m) but for all of the Access Delays in each of the four periods "or any of these delays collectively" the plaintiff would have completed the work by 20 March 2012 (repleaded paragraph 40);
(n) as a consequence of the Access Delays, the plaintiff was further disrupted by inclement weather between the date for practical completion and the date of practical completion in September 2012, and was required work on two public holidays (paragraph 41), for which it claims payment at the Standby Rates and damages (paragraphs 42 and 43).
(o) pursuant to all of the previous matters, the Access Delays were a breach of the contract for which the plaintiff seeks damages for additional personnel costs (paragraphs 44 and 45)."
[22] The plaintiff has provided an outline of the plaintiff's case in the following terms:
"152. Contrary to the defendant's submissions, the plaintiff has:
(a) identified for each item of plant, the circumstances under which standby commenced and released;
(b) identified, for each "Partial Access Period":
(i) the physical areas of absence of access which caused the continuation of standby, of which there were several;
(ii) the physical areas of access given which caused the abatement of standby;
(c) identified that the use of plant in addition to that released by the abatement of standby in particular areas, would not have improved production, there by rendering any attempt to use the additional plant commercial inutile;
(d) identified that it cannot further disentangle the various causative relationships between the release of workfaces and the abatement of standby operable for any "Partial Access Period" and that there was no other explanation for the standby."
[23] According to the Defendant, the amended pleading is largely in the same form as the 2FASOC that had been considered by Ryan J, save that the 4FASOC has pleaded additional access delays to various parts of the site and divided the access delays into various periods of time which it ultimately defines collectively as the "Defendant's Delays".[14] Those delays are said to have resulted in the standby of plant, equipment and personnel by the plaintiff giving rise to a contractual entitlement for a standby claim which is the subject of [36A] - [36D]. It contends that the Plaintiff has continued to plead on a global basis without pleading the matters necessary for a global claim. It further submits that Schedules A, A1 and A2 are the same schedules as were considered by her Honour, save that they are divided into temporal periods and do not provide particulars of the causal link between the alleged delays and standbys and should also therefore be struck out.
[24] Similarly, paragraph 39B pleads that:
"As a consequence of the 1st Partial Access Period, the 2nd Partial Access Period and the 3rd Partial Access Period, completion of the Work under the Contract was delayed by 41 calendar days..."
"But for the No Access Period, the 1st Partial Access Period, the 2nd Partial Access Period or the 3rd Partial Access Period or any of these delays collectively, ( together the Defendant's Delays) the plaintiff would have completed the Work by 20 March 2012." (emphasis added)
[26] Paragraph 40A then pleads that as a consequence of the Defendant's Delays, the plaintiff working efficiently without other delays or events requiring standbys the Plaintiff would have completed the work by 9 June 2012.
[27] The defendant complains that the plaintiff has failed to plead which part of the Defendant's access delays caused the delay of the completion works as there is also no causal link between any of the particular partial access periods and the allegation of the delay of completion of works in paragraph 39B. It contends that the claim continues to be made by the Plaintiff on a global basis without pleading the matters necessary for a global claim. It further complains that the ambiguity which resulted in her Honour striking out [40] of the 2FASOC remains as it has been repleaded in terms not materially different from [40] such that the same ambiguity remains given the words "or any of these delays collectively". It complains that 40A relies on the allegation of a global manner in [39B] and the defective allegation in [40].
[28] In paragraphs 44A - 44C, the Plaintiff pleads, in the alternative, an entitlement to damages as a result of a breach of contract. The contract relies on the "Defendant's Delays" as causing additional supervision, travel and engagement of labour, which are said to be consequential delays which were in breach of the contract. The Plaintiff states that it incurred a loss and damage for: the cost of labour by engaging operators for the periods of time that the plant was on standby as a consequence of the inclement weather; for the recurring overheads or supervision; flights and associated travel; and the cost of labour by engaging operators for the period that the Plaintiff's plant was on standby. No causal link is pleaded between the Defendant's delays and the consequential delays, or the loss which has said to have been suffered in [44A] - [44C]. The defendant complains it is again pleaded as a global claim. It contends that the related particulars in G and H should also be struck out.
[29] The defendant contends that the plaintiff's claims for standby rates and damages alleged to have been caused by numerous delays are global in nature. It submits that nothing in the 4FASOC attempts to draw any causal link between any particular one of the multiple breaches of contract to provide access to certain parts of the site alleged to have occurred in each of the four "access periods" and any particular consequence such as:
"In the alternative to the matters pleaded in paragraphs 28 to 47 hereof, the plaintiff says that:
(a) The facts linking the causative events relied upon in establishing each element of standby or delay incurred are interwoven to the extent that it is impractical to further disentangle more than has already been pleaded in paragraphs 28 to 47 hereof; and
(b) There are no explanations for the standby or delay."
[32] The defendant complains that the allegations in 47A are objectively ambiguous and create even more uncertainty as to the case the defendant is required to meet, insofar as it is in the alternative to the paragraphs 28 to 47. The defendant contends it is inconsistent with the authorities that make it clear that if the plaintiff wishes to pursue claims on a global basis it must be accompanied by an unequivocal acknowledgement otherwise it would undermine the requirement for a causal nexus to be pleaded in order to disclose a reasonable cause of action. Secondly, it complains that [28]-[47] do not plead causative links save for [35A]-[35D] and [35E]-[35F]. The defendant contends that if the plaintiff properly pleads its case for contractual entitlements and damages flowing from the Defendant's Delays on a global basis rather than as an alternative, the defendant may prepare for its case by demonstrating that the casual inference contended for cannot be sustained.
[33] The Plaintiff claims that the 4FASOC has provided much more particularity and causal subdivision on the amounts claimed than contained in the 2FASOC and that it has identified that it cannot identify in relation to each item of stoodby plant the Access Delay which it asserts caused the plant to be stood by. It therefore contends that it has satisfied both conditions identified by Ryan J and its obligations under r 149(1)(c) of the UCPR.
[34] The Plaintiff contends that Ryan J only held there was an element of global causation pleaded, not that the Plaintiff had made a global claim. It further contended that while her Honour had identified the matters which she considered the plaintiff had to plead in [173] of her judgement, the Plaintiff was given leave to replead and was not directed to do so in a particular manner. Any strike out application had to be determined according to present pleading. That is correct. However it remains relevant to consider whether the present pleading has remedied the defect previously identified by the Court which resulted in the strike out of particular parts of its pleading. It is not appropriate to re-litigate those matters already determined by the Court in the previous application and which were not the subject of an appeal. In that regard notwithstanding her Honour's striking out [36] of the 2FASOC, the Plaintiff contended that her Honour did not appear to appreciate that its primary claim was a standby claim which was a contractual claim for which it was entitled to a monetary entitlement measured by a schedule of rates. Further, the Plaintiff submitted that its primary claim was one in contract for standby for amounts due and owing and not one which can be characterised as a global claim. It contends that the defendant's argument is dependent on the characterisation of the claim as a delay claim where the causation events relied upon by the plaintiff might be said to be causative of delay. The plaintiff contends that is not required with respect to the plaintiff's standby claim.
[37] While the Plaintiff's counsel valiantly tried to contend that her Honour had not considered the pleading in paragraph 36 of 2FASOC in the context of it being a contractual entitlement, not damages, that cannot be accepted. It is evident from her reasons that Her Honour clearly appreciated that the Plaintiff relied on an entitlement to recover payment for standbys caused by the Defendant's failure to give sufficient access to different parts of the site,[15] although the emphasis of the plaintiff's argument appears to have changed insofar as it contended that the claim articulated did not contend for a loss based upon multiple interacting events for which the defendant was responsible.[16] Her Honour determined the pleading was in the nature of a global causation.
[38] The Plaintiff further contends that by pleading each of the matters which it says resulted in standby of the plaintiff coextensively and that it has identified that there was no contributing factor attributable to the plaintiff it has thereby perfected the contractual claim. The Plaintiff does not separately address the alternative claims of delay for completion and incurring of particular costs as damages complained of by the defendant.
[39] I consider that the pleading of the standby claim, notwithstanding that it seeks payment of a contractual entitlement, is one of a global nature insofar as it relies on global causation. I accept the distinction the Plaintiff seeks to draw, namely that the standby provision requires it to establish the standby was not for a reason within the Plaintiff's control, rather than having to establish that an act of the Defendant caused the standby to occur, such that it may have broader operation in permitting standby for events beyond the Plaintiff's and Defendant's control. However, it does not raise any presumption in the Plaintiff's favour. In reality, in order to show that the causes of the standby were for any reason beyond the Plaintiff's control, the Plaintiff would have to establish what the causes were for the standby of various plant, equipment and personnel and that those reasons they were beyond the Plaintiff's control. It therefore must plead what the reasons were for items of the Plaintiff's plant, equipment and personnel not to be able to work, and the material facts by which it is said they were beyond the Plaintiff's control, in order for the Defendant to be able to discern how the Plaintiff contends the clause is satisfied and the case it must meet.
[48] The Defendant contends that given the Plaintiff's case relies on "inferred causation" and cannot identify a causal link between particular access delays and the standby of particular plant, equipment and personnel in the paragraphs complained of,[22] the Plaintiff is required to plead that it is impossible or impracticable to undertake that task in relation to each claim. It does not contend that the Plaintiff cannot permissibly rely on a case relying on global causation. On the basis of the submissions made to me, I accept that the Plaintiff does appear to be able to plead an arguable case of a global nature and should be permitted to do so. It does not appear to me that the Plaintiff is in a position to plead a conventional case of causation, given the concessions it has made.
[49] Paragraph 47A of the 4FASOC, which has been pleaded in the alternative, is defective insofar as it seeks to apply to different heads of claim, namely the standby claim, claim for consequential damages and damages for delay in completion. Further, paragraph 47A seeks to apply only to the extent it has not pleaded causative links in a number of paragraphs which have nothing to do with causation. Seeking to do so runs contrary to what is required to plead a global claim and is clouded by ambiguity. It should be amended to properly plead the global claim which is permissible only where it is impossible or impracticable to disentangle part of the loss which is attributable to each head of claim and where that situation has not been brought about by the delay or other conduct on the part of the claimant.[23] The Plaintiff appears to be left in a position where it can only plead a global claim in relation to causation for the claims in question. I will not therefore consider whether a global claim can as a matter of law be pleaded in the alternative claim given that the plaintiff's primary pleaded claim does not disclose an arguable case in terms of causation and cannot presently stand without a pleading which seeks to justify the pleading of causation on a global basis. As a matter of principle, notwithstanding the ability of parties to plead inconsistent claims, it would be difficult for a global claim to be able to be pleaded in the alternative given the matters which must be satisfied in order to plead such a claim.[24]
Complaint regarding Paragraphs 126 and 133 - Complaint 3
[52] The Defendant complains that the Plaintiff seeks payment on the basis of a reasonable cost at fair market rates for additional haulage and inefficiency at [126] and [133], but has failed to plead the necessary facts or provide particulars of the reasonable cost at fair market rates. The Defendant contends that the reasonable cost can only be costs incurred given the claim is one for damages.
[53] The Defendant contends that the plaintiff's mass haul claims are for both damages arising from the alleged breaches of contract and for a variation under the contract. It states that the Plaintiff pleads that it incurred amounts which are a "reasonable cost at a fair market rate" but nowhere does it plead material facts, nor provide any particulars of that "reasonable cost" or "fair market rates". The Plaintiff informed the Defendant that the rates in F1 and F2 were a "reasonable rate" or "fair market rate" (which is not what is pleaded), but provided no further particulars of how they were calculated. Thus, the Defendant complains it has neither complied with rr 149(1)(b)-(c), 155(2)(c) and 155(4) of the UCPR, nor the relevant particulars that would be required. Secondly, the Defendant complains that each "reasonable rate" in Schedules F1 and F2 appear to relate to the variation claims only and identify no coherent basis upon which a reasonable rate for excavation and fill is worked out. In particular, the Defendant complains the Plaintiff has no way of knowing how the rate is worked out or how the rate would have been included in the Schedule of Rates. The Defendant contends that paragraphs 126 and 133 should be struck out or the Plaintiff ordered to provide particulars of the "reasonable cost" and "fair market rates". The particulars in Schedules F1 and F2 of the reasonable rate claim for excavation and filling should be struck out for failure to comply with the rules. The defects the Defendant claims cannot be cured by the provision of expert reports.
[54] The Plaintiff, however, contends that the Defendant misunderstands its case. It contends that the claims are for an entitlement to payment for a variation to the contract, or failure to pay entitlement, to a reasonable rate pursuant to an implied term. Further that the measure of loss is referrable to an entitlement to a reasonable amount or reasonable rate for the incurred work. The Plaintiff contends that it has provided particulars of the costs in Schedules F1 and F2, and the Defendant's request beyond that is a request of evidence.
[62] In the circumstances, the orders of the court will be:
- (a) The words "to the extent of any inconsistency only" and "and which was thereafter varied from time to time by the matters particularised in paragraph 8 of the Statement of Claim" in paragraph 4B(b)(i) of the Further Amended Reply are struck out;
- (b) Paragraph 47A the Fourth Further Amended Statement of Claim (4FASOC) should be struck out with liberty to re-plead;
- (c) The plaintiff is to provide particulars in respect of the facts matters and circumstances relied upon in respect of the "reasonable rate" referred to in schedule F1 and F2 and the particulars of the work actually performed in respect of [126] and [133] of the 4FASOC; and
- (d) The matter is to be listed for review and consideration of further orders including as to costs in the week of 25 May 2020 or 1 June 2020 at 9.00am. The parties are to liaise with the Brown J's associate in this regard.
[1] Remuneration is paid by the Defendant to the Plaintiff based generally upon the volume of materials moved, or the time worked by plant and equipment supplied by the Plaintiff.
[2] DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170; Equititrust Limited v Tucker (No 2) [2019] QSC 248.
[3] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82; Alexanderson Earthmover Pty Ltd v Civil Mining & Construction Pty Limited [2019] QSC 259 (Alexanderson) at [49] referring to Equititrust Limited v Tucker & Others (No 2) [2019] QSC 248 at [6] - [17].
[5] Uniform Civil Procedure Rules 1999 (Qld) (UCPR), r 171.
[8] Which is a matter of dispute between the parties.
[9] Alexanderson at [171] - [173].
[11] Alexanderson at [210] and [212].
[12] [2004] QSC 229 at [3].
[13] John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd (1996) 8 VR 681 at [15]; Laing Management (Scotland) Ltd v John Doyle Construction Ltd [2004] ScotCS 141; [2004] BLR 295 at [12]; McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd [2011] QSC 178 at [127].
[15] See for example Alexanderson at [77], [99], [100], [101], [167], [168] and [169].
[19] Lacaba Ahden Australia Pty Ltd v Buycrys (Australia) Pty Ltd [2006] QSC 147 (Lacaba's case).
[20] Plaintiff's Amended Outline of Submissions at [32(b)].
[22] In contrast to its claim pleaded in 35-35D, 35E and 35F of the 4FASOC.
[24] See for example DM Drainage & Constructions Pty Ltd as Trustee for DM Unit Trust t/as DM Civil v Karara Mining Ltd [2014] WASC 170 at [54], although that case was dealing with a total cost claim.
[25] Lacaba Ahden Australia Pty Ltd v Buycrys (Australia) Pty Ltd [2006] QSC 147.
[26] It does however, state that further particulars may be provided upon the completion or disclosure by the parties and provision of expert reports.
[27] [2007] VSC 391 at [127], referred to in the Wiggins case at [226].
Alexanderson Earthmover Pty Ltd
Civil Mining & Construction Pty Limited [2020] QSC 122
(1954) 91 CLR 353
(2006) 33 WAR 82
(1996) 8 VR 681
Orders: (a) strike out the words "to the extent of any inconsistency only" and "and which was thereafter varied from time to time by the matters particularised in paragraph 8 of the Statement of Claim" in paragraph 4B(b)(i) of the Further Amended Reply; (b) strike out paragraph 47A of the Fourth Further Amended Statement of Claim with liberty to re-plead; (c) order the plaintiff to provide particulars of the facts, matters and circumstances relied upon for the "reasonable rate" in Schedules F1 and F2 and particulars of the work actually performed in respect of [126] and [133] of the 4FASOC; (d) list the matter for review for further orders including costs in the week of 25 May 2020 or 1 June 2020 (see [62]).
[10] However, I did determine that, to the extent 13 October agreement was said to be partly oral that the material facts relied upon to allege that the agreement was partly oral and that terms were orally agreed needed to be pleaded. As a result of the indication I had given, the Plaintiff undertook to amend the pleading in that regard.
[11] I determined however that the reference to "to the extent of any inconsistency" in paragraph 4B(b)(i) of the Further Amended Reply should be struck out. The Plaintiff indicated that it was relying on the terms of the written contract for its causes of action and could not identify any terms of the 13 October 2011 agreement that continued to be operative, after the written agreement became operative.[8] In those circumstances, I determined that I should strike-out the words "to the extent of any inconsistency only" and "and which was thereafter varied from time to time by the matters particularised in paragraph of the Statement of Claim", given that there were no varied terms of the agreement pleaded in paragraph 8 on the basis that those words would tend to prejudice, embarrass or delay a fair trial.
[12] A further complaint was made as to the particulars in paragraph 9(c)(viii). In that regard, the pleading was said to be lacking in clarity to the extent that it was meaningless and should be struck out. In oral argument, the Plaintiff stated that the particulars of the oral discussions are those referred to in the emails of the particulars to paragraph 9(c)(i) - (vii). The Plaintiff agreed that they would refer to those emails in the particulars for 9(c)(viii) in order to define the discussions that are referred to and the content of them. The Defendant indicated that they were prepared to accept that course.
[13] The parties should formulate appropriate orders for the court to consider to reflect the determination at the hearing other than the order for strike out as to 4B of the Further Amended Reply.
[30] The defendant submits that it is clear that the plaintiff is unable to plead the standby, delay and supervision damages claims other than as global claims. The defendant contends that [36A]-[36D], [39B]-[40A] and [44A]-[44C] cannot be maintained unless [47A] is repleaded to accord with the pleading requirements of a global claim in relation to each of the allegations.
[31] Paragraph 47A pleads that:
[35] The Plaintiff submitted that her Honour had not considered an entitlement for standby arising under a contractual provision, as opposed to the cases dealing with global claims which related to damages arising from delay or disruption, when determining that the plaintiff's case relied on global causation and striking out that pleaded allegation on the basis that the defendant had to either plead the causal link between the access delay and each item of plant, equipment or personnel stoodby or that this was a case where it was impossible or impracticable to undertake that task. In paragraph 26(d) of 4FASOC the plaintiff has pleaded an obligation by the defendant "to pay the plaintiff at the Standby Rates, at a minimum of 10 hours per day for 6 days per week, for any 'stop work, delay commencement of work' or 'standby for any reason beyond the (plaintiff's) control.'" At paragraph 27 of the Statement of Claim, the Plaintiff alleges that the failure to provide and maintain Sufficient Access was a breach by the Defendant of an obligation to provide and maintain sufficient access, or alternatively, that it was a "stop work, delay commencement of work" resulting in a "standby for any reason beyond the [plaintiff's] control" of the Plaintiff's plant equipment and personnel entitling the Plaintiff to be remunerated in accordance with the provision for payment of standby. The Plaintiff submitted that the singular should be read as the plural and therefore "reason" should be read as "reasons" and that it was not obliged to identify a cause of the standby. In order to plead its claim and to satisfy r 149(1)(c) of the UCPR, the Plaintiff contends that it has identified each of the multiple matters which it says resulted in the standby of the plant coextensively and has identified that there was no contributing factor attributable to the Plaintiff, thereby perfecting the contractual claim. It contends that to be entitled to claim under the contract, it does not need to prove the individual cause of the standby, but only negative the proposition that the cause was something within the Plaintiff's control.
[36] The Plaintiff does not shy away from the fact that on the facts pleaded there were multiple causes of standby rather than one to one relationships between an item of plant being on standby and a cause. Nor does it contest that it cannot disentangle the different reasons which were beyond the Plaintiff's control so as to identity the particular access delay it alleged caused the plant or personnel to be stood by. However, it contends that in order to establish its contractual entitlement, it did not have to disentangle the reasons for the stop work, delay commencement of work or standby, as long as it pleaded that the reasons for the delay or stop work were beyond the plaintiff's control, which it submits it has done.
[40] The Plaintiff's pleaded case is, in fact, that it was not responsible for various plant, equipment or personnel which could not work, because the Defendant was responsible for all the events giving rise to the standby of plant, equipment and personnel, namely the access delays as a result of its failure to provide the plaintiff access to different parts of the site. It pleads that there are multiple causes of standby having caused the standby of different plant, equipment and personnel at different times. Pleading the preconditions to a contractual entitlement to standby does not relieve a party of having to establish a causal link to the amount claimed as compensation under the contract. Nor does the fact that a standby claim is distinct from a delay claim mean that the Plaintiff is not required to plead the causal link between the reason for standby and the actual standby that occurred giving rise to a right of compensation. Nor is the fact it is a contractual claim as opposed to a damages claim a distinguishing feature.
[41] The terms of the contractual clause does not excuse the Plaintiff from having to identify the causal link between the individual acts giving rise to the standby for which it is said it is entitled to be compensated. In order to respond to the plaintiff's case that it is liable under the contract for standby in the amount claimed, the defendant must be informed of the causal link between the compensable event and the loss claimed in order to be able to respond to the plaintiff's case that the access delays it is said to have caused have caused the standby claimed and that the reasons for the standby are in fact matters not within the plaintiff's control. The present pleading does not do that and suffers the same failure identified by her Honour in relation to the previous pleading. To the extent that the plaintiff purports to rely on the question of causation being a global claim in [47A] it does so in the alternative to the preceding paragraphs which suffer from the complaint properly made by the defendant, namely that the pleading of causation is a global causation. Thus the primary pleading is defective for failing to plead the requisite causal link between the access delays and the plant, equipment and personnel being placed on standby as a consequence. The same defect arises in relation to the delays to completion and the incurring of any particular cost claimed as damages.
[42] Ryan J in her previous judgment discussed and distinguished the cases of McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd,[17] Santos Ltd v Fluor Australia Pty Ltd,[18] and Lacaba Ahden Australia Pty Ltd v Buycrys (Australia) Pty Ltd.[19] The Plaintiff did not seek to demonstrate that the amended paragraphs in 4FASOC meant the pleaded case now was such that those cases should now be applied differently. The points of distinction found by her Honour between the present case and those mentioned above remain valid.
[43] The amended pleading plainly does not address the complaint made in terms of what her Honour correctly described as "global causation". In the present case, the Plaintiff has pleaded that it is the Defendant which has delayed the use by the Plaintiff of its plant, equipment and personnel in the first partial access period and second partial access period, and that there is an entitlement to payment without any pleading of what particular access delay caused any particular item of plant or personnel to be stood by on each particular day. The Plaintiff was candid that it was not able to disentangle which particular access delay caused which plant, equipment or personnel to be on standby.[20] In those circumstances, it appears that it must seek to rely on the principles relating to global claims.
[44] Further, the plaintiff did not demonstrate that the present claims fall squarely within those considered by Flanagan J in Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (Wiggins Case).[21] The Plaintiff raises no basis for the application of contribution or apportionment that applies to its pleaded case. Those matters do not therefore require further consideration.
[45] Paragraph 39B pleads that various delayed partial access periods delayed completion of work by a period of 41 days. Paragraph 40 contends that, but for any of the no access or various partial access periods, (which were defined as the defendant's delays) or any of those delays collectively, the Plaintiff would have completed the work by a particular date. Paragraph 40A pleads inter alia "as a consequence of the defendant's delays and the matters pleaded in paragraphs 39A and 39B hereof" the works would have been completed by a particular date. The amendment suffers from the same defect that caused her Honour to strike out paragraph 40 of the 2FASOC. It relies on different delays to different parts of the site as delaying completion, such that the Defendant cannot identify what part or parts of the access delays the Plaintiff is relying upon so it is able to meet the case being relied upon. Those delays are relied upon in paragraph 40A.
[46] Paragraph 44A to 44C plead "by reason of the Defendant's Delays" the Plaintiff has suffered loss. Paragraph 44B sets out the loss and damage suffered. No causal link has been pleaded between the Defendant's delays and the loss suffered. Paragraph 44C seeks to claim that consequential delays were a breach of contract and relies on the Defendant's delays. The Plaintiff has not, by its amended pleading, rectified the complaint which resulted in her Honour striking out [44] of the 4FASOC.
[47] Given the global nature of the pleading of causation in relation to all of the paragraphs the subject of the defendant's complaint they cannot stand as the primary case as they do not plead the relevant causative link other than on a global basis. The plaintiff on its own case cannot relevantly disentangle the various causative relationships so as to be able to properly plead the causative links between each alleged access delay and the consequential items or personnel the subject of standby. In those circumstances the pleading is deficient in the absence of the different claims being pleaded permissibly as global claims in terms of causation.
[50] Paragraph 47A should be struck out with liberty to re-plead.
[51] It may be that if 47A is repleaded in an appropriate manner and not in the alternative to paragraphs 36A - 36D, 39B - 40A, and 44A and 44C there is a possibility that they do not necessarily need to be struck out, at least in their entirety having regard to the pleading in Lacaba's case,[25] depending on how the case is reformulated. I will hear from the parties further in this regard on the appropriate order including as to particulars.
[55] The Plaintiff claims that the claims are for an entitlement to payment for a variation to the contract from the Defendant, being a reasonable price determined by the Defendant or payment at a reasonable rate. However, the reasonable rate was not included in the Schedule of Rates. The Plaintiff states that its case is a reasonable price determined with reference to the reasonable rate for the additional work executed. The reasonable cost in question is the cost at a fair market rate. Alternatively, the Plaintiff seeks a claim in damages for breach of contract calculated by reference to the comparison of the Plaintiff's reasonably expected position had the Contract been performed. That is, the price or reasonable cost to the Defendant, which the Plaintiff would have tendered on had the Defendant not breached the contract. While the Defendant contends that the Plaintiff is required to plead its actual costs incurred as its loss, that is not how the Plaintiff has formulated its claim.
[56] The Plaintiff directed the court to Schedule F1, which states beside "reasonable rate for excavation (win, load and haul)" a figure of $10.46 and then states "the amount per cubic metre for the work described that would have been included in the Schedule of Rates had the work being (sic) within the scope of works at tender". According to the Plaintiff, the figure in the schedule is the rate at which their client would have included in a tender for such work. Given that it is a figure formulated by the Plaintiff's employees that would have been included in a tender, it states that it cannot provide any further particulars.
[57] The Plaintiff contends that if the courts view is that further particulars of the calculation of the reasonable rate are required, to prevent surprise, the appropriate order would be to compel the Plaintiff to provide the said particulars after the provision of expert reports, relevantly an expert opinion on the fair market rate for the additional work at the time of tender. That submission is perplexing given its submission that the market rate in F1 and F2 is a rate which emanates from the Plaintiff.
[58] The size of the claim under [126] and [133] is not an insignificant one, being some $3 million. It is evident from the response of the Plaintiff that it seeks to claim an entitlement based on a variation or pursuant to an implied term. While the reference to a "reasonable cost" is confusing, the claim is based on a rate which the Plaintiff says would have been a reasonable rate to which it would have been entitled, either as the subject of the Schedule of Rates or a variation. In Danidale Pty Ltd v Abigroup Contractors Pty Ltd,[27] Habersberger J stated that a reasonable rate is assessed by having regard to what a party would have had to pay under a normal commercial arrangement and to the cost of the work actually performed.
[59] Given that the Plaintiff has based the "reasonable cost at fair market rates" on a reasonable rate, particulars should be provided as to that rate. Given, each reasonable rate was formulated by the Plaintiff's employees as the figure it would have used had it tendered for the work, the Plaintiff should be able to at least give some particulars as to the basis upon which it is said that is the reasonable rate for that additional work executed, and therefore represents the "reasonable cost" to a person in the position of the Defendant at "fair market rates". The Plaintiff should be able to provide some particulars even if it cannot provide a particular of the figure nominated as the reasonable rate. Given that the Plaintiff also relies on Danidale Pty Ltd v Abigroup Contractors Pty Ltd in relation to a reasonable rate, particulars of the costs of the work actually performed should also be provided.
[60] In its reply, the Defendant expanded the matters to which it says it is entitled. These applications are not ones which are ever evolving. I am not persuaded that it is appropriate to make orders for the additional matters raised.
[61] I am not satisfied that [126] and [133] should be struck out given that it is evident that the plaintiffs case is based on a reasonable rate and for the contract claim, expectation damages. However, I will order that the particulars be provided of the facts, matters and circumstances relied upon by the Plaintiff to assert the reasonable rate in F1 and F2 which applied to the additional work executed. Given the clarification by the Plaintiff of its case, and the fact that the evidence in this matter is to be provided by way of affidavit and expert reports, that should be sufficient for the Defendant to know the case it has to meet, even if the terminology used between [126] and [133] are different.