Supreme Court of WA|2006-11-30|Before: Martin CJ

Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281 (30 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BARCLAY MOWLEM CONSTRUCTION LTD -v- DAMPIER PORT AUTHORITY & ANOR [2006] WASC 281

Practice and procedure - Circumstance in which Court will entertain objection to pleadings and argument in relation to particulars - Pre-trial case management - Case management techniques and pre-trial directions - Contemporary purposes of pleadings - Objections - Provision of particulars - Obligation to confer

Question of further directions in relation to pleading be reviewed at a later date

The time within which an application to strike out the statement of claim be extended

1 MARTIN CJ: The only aspect of the applications that are before me that are contested today is the plaintiff's application for orders that:

1. previous case management orders made by the case managing Registrar be varied so that the solicitors for the plaintiff be relieved from conferring with the solicitors for the defendant in relation to the written objections to the amended substituted statement of claim dated 1 November 2006; and

2. that by 8 December 2006, the defendant provide to the plaintiff revised written objections to the statement of claim setting out in a succinct form the primary reasons why the defendant says the statement of claim does not disclose a reasonable cause of action and/or why the statement of claim is not in a form which the defendant can plead to and that thereafter the practitioners orally confer in relation to the revised objections; and

3. that thereafter various consequential directions be made, programming any application to strike out the statement of claim.

2 The background to the matter is set out in the affidavit material which has been filed and includes an earlier statement of claim filed by the plaintiff which was the subject of a voluminous statement of objections prepared and served by the defendant. The statement of objections was approximately 150 pages in length. In response to those objections, the plaintiff withdrew the earlier statement of claim and filed the amended substituted statement of claim dated 1 November 2006.

3 Pursuant to case management directions made by the case managing Registrar on 17 November 2006, the defendant filed a further lengthy minute of objections to the substituted statement of claim in which objections of different kinds are taken to almost every paragraph in the substituted pleading. This list of objections was approximately 40 pages in length. The substituted statement of claim is 56 pages in length. The question which the application therefore raises is the question of the best way of enunciating and resolving a dispute between the parties as to the adequacy of the statement of claim.

4 It is, I think, important when approaching an issue of that kind to bring to mind the contemporary purposes of pleadings. The purposes of pleadings are, I think, well known and include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.

5 In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. In this Court, those pre-trial directions will almost invariably include; firstly, a direction for the preparation of a trial bundle identifying the documents that are to be adduced in evidence in the course of the trial; secondly, the exchange well prior to trial of non-expert witness statements so that non-expert witnesses will customarily give their evidence-in-chief only by the adoption of that written statement; thirdly, the exchange of expert reports well in advance of trial and a direction that those experts confer prior to trial; fourthly, the exchange of chronologies; and fifthly the exchange of written submissions.

6 Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.

7 In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.

8 Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.

9 In this case, I have reviewed the statement of claim and the objections to it and I have done so in the case management context to which I have referred. It is my view, that many of the objections which have been taken are pedantic and pettifogging in nature. In many cases, elucidating and resolving the objection would consume an amount of time and resources, which is entirely disproportionate to the benefit to be derived from that process in terms of the identification of the true issues which have to be met in the case.

10 In many cases, consideration and determination of each objection would give rise to precisely the type of time and resource wasting forensic exercise which the Commercial and Managed Cases List was created to discourage. That is not to say that buried within those voluminous objections there might not be a criticism that should be properly be seriously entertained, but having looked myself at the statement of claim, it is my view that any lawyer looking at that pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, would have no difficulty in ascertaining those matters.

11 There are claims for misleading and deceptive conduct, claims for variations pursuant to the contractual provisions, claims for extension of time and delay damages arising from those variations, there is an acceleration claim and a claim relating to the posting of security for the contract works.

12 None of them are claims of a kind that are unfamiliar to any lawyer regularly practising in the construction area. None of them are exceptional. All of them are capable of clear enunciation and comprehension and appear to give rise to arguable causes of action. It seems to me, that only a lawyer interested in technical advantage, obfuscation and delay could feign ignorance of the substantive issues that emerge from that pleading and the case which has to be met.

13 There is currently no application to strike out the pleading. The application that is before me only concerns the process that ought to be followed in order to efficiently and conveniently address, and hopefully resolve, the issues that have arisen in relation to the adequacy of the pleading.

14 In the context to which I have referred, I am not persuaded that ordering the production of a further document will be of any particular assistance and that is because, unfortunately, the history of this case leads me to conclude that it is unlikely that the time and effort that would be spent in the production of yet another statement of objections is likely to more clearly enunciate those pleading points that ought properly entertain the attention of the parties and, if unresolved, in due course, the attention of the Court. However, that it is not to say that either the plaintiff's lawyers or the Court should be left to sift through a mullock heap of insubstantial and pedantic objections in the hope of finding an objection worthy of consideration. It simply reflects my view that, given the unfortunate history of this case, the process of identifying any objections of substance is likely to be better advanced by oral conferral between counsel in the first instance, than by the preparation of yet another document.

15 It is also clear from my review of the objections that in many cases their appropriate resolution may lie in the provision of particulars of the pleading. Having made that observation, however, I would discourage the idea that particulars should be sought merely because they could be sought and I would discourage acceptance of the proposition that particulars have to be provided merely because they can be provided.

16 Particulars should be provided, in an appropriate case, where they are necessary to meet the fundamental objectives to which I have referred; that is to say, the true enunciation of the issues that are to be tried and the identification of the case that has to be met. The need to provide particulars must also be assessed in the case management environment to which I have referred; that is to say, an environment in which the parties can be assured that the case will not go to trial before various orders have been made requiring the pre-trial disclosure of all the evidence that will be adduced at trial.

17 As I have indicated, I am not persuaded that conferral in this case would be a waste of time. The observations I have already made in relation to the statement of objections dated 17 November should be sufficient to discourage the defendant from insisting upon conferral in relation to each and every item identified in that statement of objections, but as Mr Boyle has pointed out and Mr Colvin concedes, tucked away within that voluminous statement of objections, obscured by the mass of pedantic detail, there may well be criticisms which meet the criterion to which I have referred; that is to say, the criterion of having to be addressed in order to ensure the proper and efficient preparation of the case for trial and its presentation at trial.

18 So the course that I think will result in the most efficient resolution of this case is for me to not relieve the parties of their obligation to confer, but indeed to encourage them to confer, not through their solicitors, but through their counsel, having regard to the observations that I have made in respect of the sorts of objections that ought be maintained and the sorts of particulars that ought be provided. To enable that process to occur, I will make a direction extending the time within which application to strike out the pleading is to be brought.

19 It follows that I would not propose to make any directions for the provision of a defence until that process has occurred, but I would hope that that process can occur promptly and I would like to bring the matter back before me after it has occurred.

In relation to the Minute of Proposed Orders and Directions on entry into the CMC List, dated 29 November 2006, there be the following directions:

a. Counsel for the parties confer in relation to the adequacy of the existing statement of claim, having regard to the written objections provided on 17 November 2006, but viewed in the light of the reasons for decision just enunciated;

b. That the question of further directions in relation to the pleading be reviewed on 13 December 2006; and

c. That the time within which any application to strike out the statement of claim be made be extended until further order.

2. Orders in terms of paragraphs 2 to 13 of the Minute.

3. Costs of today of today be reserved generally.

4. Adjourned until 9.15 am on Wednesday, 13 December.

Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281

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Judgment (29 paragraphs)

Barclay Mowlem Construction Ltd v Dampier Port Authority & Anor [2006] WASC 281 (30 November 2006)

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