Bedrule Pty Ltd trading as Tobco v Ventia Australia Pty Ltd

Category: Procedural rulings

Parties: Bedrule Pty Ltd trading as Tobco (Plaintiff)
Ventia Australia Pty Ltd (Defendant)

Representation: Counsel:
M Sheldon and J Li (Defendant)
Solicitors:
Gilberts Legal (Plaintiff)
Thomson Geer (Defendant)

File Number(s): 2024/42534

Publication restriction: Nil

JUDGMENT

1. This decision concerns five notices of motion, four of which were filed by the defendant, Ventia Australia Pty Ltd (‘Ventia’), and one of which was filed by the plaintiff, Bedrule Pty Ltd trading as Tobco (‘Tobco’).

2. The plaintiff’s business is the undertaking of civil and electrical infrastructure works. The defendant’s business is the provision of infrastructure services.

3. On 6 October 2023, the plaintiff and the defendant entered into a contract (‘the contract’) for the provision, by the plaintiff, to the defendant, of underground civil works for the Western Distributor Smart Motorway Project (‘the project’). The contract provided that the works were to be completed by 22 December 2023. On 17 November 2023, the defendant issued the plaintiff with a breach notice. The plaintiff alleges, in its Statement of Claim, that the defendant repudiated the contract by conduct from 12 October 2023 to 15 December 2023 and that the plaintiff gave notice on 21 December 2023 that it accepted the defendant’s repudiation of the contract and terminated the contract. The plaintiff seeks damages for breach of contract and claims restitution on the basis of unjust enrichment of the defendant.

4. The defendant denies that it repudiated the contract or breached the contract. The defendant has filed a cross-claim in which it alleges that the plaintiff repudiated the contract and breached the contract. The defendant, as the cross-claimant, seeks damages and the payment of a liquidated sum it says is due to it under the sub-contract.

5. The parties have reached partial agreement with respect to four of the five notices of motion.

Ventia’s motion to amend its Defence and Cross-Claim dated 2 December 2024

6. The parties have agreed the following orders and there are no outstanding issues in dispute with respect to this motion:

7. The Defendant/Cross-claimant is granted leave to rely on its Amended Defence served on 17 January 2025.

8. The Defendant/Cross-claimant is granted leave to rely on its Amended Statement of Cross-Claim served on 17 January 2025.

9. The Defendant/Cross-claimant is to pay the Plaintiff/Cross-defendant’s costs thrown away as a result of the amendments to the Defence and Cross-Claim.

10. The costs of the Defendant/Cross-Claimant’s Notice of Motion in relation to the Amended Defence and Amended Statement of Cross-Claim will be costs in the cause.

Ventia’s Motion for Discovery dated 5 December 2024

7. The parties have agreed to orders 5 and 6, set out at [10] below, with respect to this motion, but have not reached agreement on an order as to costs.

8. The defendant seeks an order that the plaintiff pay the costs of this Notice of Motion. The defendant submitted that it should have an order for costs in its favour because the plaintiff withheld its consent to discovery for four months after the defendant sought discovery, and the defendant said that the withholding was unreasonable. The defendant submitted that the plaintiff “capitulated” to the defendant shortly before a hearing, scheduled for 19 March 2025, which did not proceed and that the defendant had incurred the costs of submissions by that date. The defendant relied upon the decision of the Full Court of the Federal Court in Chapman v Luminis Pty Ltd [2003] FCAFC 162 (‘Chapman’) at [7]:

7 The authorities establish the following propositions in relation to the making of costs orders in circumstances such as the present:

- where a proceeding terminates before there has been a hearing, the Court should not resolve the issue of costs by engaging in something in the nature of a hypothetical trial: Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194 at 201;

- this does not mean that a Court can never make an order for costs. Often it will be unable to do so, but in other cases an examination of the reasonableness of the conduct of the parties may provide the basis for an order, or a judge may be confident that one party was almost certain to have succeeded if a matter had been fully tried: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 625 (McHugh J);

- a distinction is to be drawn between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the Court's discretion otherwise than by an award of costs to the successful party. It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party, rather than the other, should be bear the costs: ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 171 ALR 227 at 231-232 (Burchett J).

9. In Chapman, the Court was dealing with an appeal which was discontinued, rather than an interlocutory application for discovery, but similar considerations apply. Counsel for the defendant categorised the plaintiff’s situation as being an effective surrender to the defendant. The plaintiff has agreed to provide discovery of documents in all of the categories sought in the defendant’s application. Had the plaintiff agreed to that course at an earlier point in time, the defendant would not have needed to prepare submissions for the scheduled 19 March 2024 hearing. However, the defendant would still have incurred costs in seeking discovery. I will award the defendant the costs of the preparation of submissions in relation to this Notice of Motion.

10. The orders in relation to Ventia’s Notice of Motion of 5 December 2024 seeking discovery will be:

(5) The Plaintiff/Cross-defendant is to give discovery of the categories of documents specified in the Schedule annexed to the Defendant/Cross-claimant’s Notice of Motion for discovery dated 5 December 2024 pursuant to rules 21.2 and 21.3 of the Uniform Civil Procedure Rules 2005.

(6) The Plaintiff/Cross-defendant is to produce and make available for inspection the documents discovered in accordance with Order 5 by 5 June 2025.

(7) The Plaintiff/Cross-defendant is to pay the costs of the preparation by the defendant of its written submissions for the Court with respect to this Notice of Motion. The balance of the costs for this Notice of Motion are to be costs in the cause.

Tobco’s Motion for Discovery dated 3 December 2024

11. In its Notice of Motion, Tobco seeks discovery from Ventia in relation to ten categories of documents. Subsequent to the service of the Notice of Motion, the parties entered into negotiations with respect to the scope of the categories. This resulted in the plaintiff producing a Revised Schedule of Categories for Discovery (‘the Revised Schedule’) on 12 March 2025. Two new categories of documents, Categories 11 and 12, were added to the Revised Schedule.

12. Ventia has now agreed to provide the documents sought in revised Categories 1 to 10, however, it opposes any order for discovery in new Categories 11 and 12, and also wishes to exclude from the order for discovery “any document that is a communication with the Plaintiff/Cross-defendant”. The parties have not come to an agreement with respect to costs.

13. Categories 11 and 12 are:

11. The contract between Ventia and Seymour Whyte for the Project.

12 All documents passing between Ventia and Seymour Whyte in relation to the:

i. Target Outrun Cost

ii. Actual Outrun Cost

iii. Costs Incentive

iv. KRA Incentive

which are referred to and relied upon by the cross claimant in paragraph 19 of the Amended statement of cross claim.

14. On 7 March 2025, the solicitor for Ventia wrote to the solicitor for Tobco saying, among other things:

9(c). Subject to your client giving our client a notice to produce the sub-alliance agreement with Seymour Whyte referred to in paragraph 12 of Mr Boone’s affidavit dated 19 December 2024, our client will agree to produce a redacted version of that agreement. As Mr Boone said in that affidavit, the reason her has not exhibited that agreement is because it is confidential. It cannot be produced without a compulsory process of the Court.

15. On 10 March 2025, the solicitor for Tobco responded by email, saying, among other things:

In order to avoid further wasted costs, our client will accept the proposal contained at paragraph 9 of your letter dated 7 March 2025.

16. Tobco wishes to see a copy of the sub-alliance agreement in order to explore the basis for the calculation of loss which Ventia has indicated that it intends to claim in its cross-claim. I assume that the redactions contemplated in the correspondence will take Tobco’s purpose into account. The parties have therefore agreed to deal with Category 11 by way of a notice to produce, and that category need not be the subject of any order.

17. In its Supplementary Submissions on its Notice of Motion for Discovery filed on 3 December 2024, dated 22 April 2025, the plaintiff argued that the claim for damages in the foreshadowed Amended Cross-Claim had been particularised in Ventia’s case in the report of Mr Corey Farrell dated 4 November 2024. In his calculation, Mr Farrell used a figure arrived at by calculating “a percentage of the cross claimant’s performance against key performance indicators”, which, it was said, were not specified.

18. The plaintiff submitted that it does not know what documents Ventia is in possession of which are relevant to the calculation, and, therefore, general discovery is appropriate. The plaintiff relied upon the decision of Justice Kunc in Lee v Belmore 88 Pty Limited [2025] NSWSC 96 (‘Lee’) at [7]:

7. Third, general discovery will better achieve the overriding purpose than category discovery in this case because:

1. The issues are well defined by pleadings and the parties’ lay evidence filed to date. There should be no unusual or burdensome difficulty in the identification of documents relevant to a fact in issue pursuant to general discovery, especially where the respondents are themselves lawyers.

2. There is a real asymmetry of information in favour of the defendants which gives rise to a real and not fanciful possibility of injustice in trying to ensure categories are adequate in the plaintiffs' interest. That asymmetry is primarily represented by the fact that one of the respondents is the former partner of HWLE who is presumably better placed than anyone to know where relevant material is to be found.

3. There is every chance that there will be a potentially disproportionate amount of time and costs spent arguing about the categories and then parsing and applying those categories in the review of documents.

4. The respondents have not satisfied the Court that general discovery will be more onerous or expensive than category discovery, and given the consideration referred to in the preceding paragraph, there appears to be a realistic prospect that general discovery will not only be no more expensive than categories, but may even be less costly. This last conclusion is a matter of impression. However, that is often a legitimate approach in matters of practice and procedure. The Court would not undertake a precise financial quantification even if it had the necessary evidence, which it does not in this case.

19. I note that Justice Kunc, in Lee, at [6] pointed out that questions concerning whether category discovery or general discovery were appropriate must “determine what is required to achieve the overriding purpose under s 56 of the Civil Procedure Act 2005”, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

20. Tobco also submitted that the “touchstone for discovery is relevance to a fact in issue in the proceedings” (Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 per Kunc J at [21] – [22]).

21. Ventia, in its submissions, said that evidence of the figures and calculations associated with the calculations it would rely on for its cross-claim were provided by Mr Jeroen Boone in his affidavit of 17 January 2025. That affidavit is not before me. Ventia submitted that Exhibit JB2 to Mr Boone’s affidavit provides business records which identify the relevant figures. Mr Boone’s affidavit was provided to Tobco three months ago. In effect, Ventia submitted that it had provided sufficient evidence but, if Tobco wished to test any aspect of the issues in Mr Boone’s evidence, it had enough information to request specific documents, rather than putting Ventia to the expense of a wide ranging search and production of a great many documents. Ventia submitted, in its written submissions:

The burden on the Defendant to produce every document is disproportionate, particularly where the figure is regularly reported and approved in summary business records, and the most relevant ones have been provided to the Plaintiff.

22. Ventia relied on the decision of Bellew J in Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 at [19]:

19. The parties were generally in agreement as to the principles which apply to an order for discovery. In the context of the present case, those principles may be summarised as follows:

(i). discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22];

(ii). the facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23;

(iii). for the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138;

(iv). the relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181;

(v). discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan’s Fisheries Pty Ltd [2017] NSWSC 1262;

(vi). discovery involves an “inroad”, in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338;

(vii). the discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra);

(viii). although proper compliance with a party’s obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200;

(ix). there is no entitlement to “chain of enquiry” discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264.

23. An indication was given at the hearing of the Notices of Motion that the quantum of the claim and cross-claim was not of an order which would justify an extensive and exhaustive general discovery process.

24. In all of the circumstances, Category 12 is too broad. It is likely that only a few of the documents in that category would be directly required for the calculations contemplated for the cross-claim and many, if not all, of those documents may already have been provided to Tobco. The request for Category 12 discovery is too onerous and must be refused.

25. Ventia has submitted that it should not be required to discover documents which are a communication with the Plaintiff/Cross-defendant, on the basis that the Plaintiff should be in possession of those documents. I agree.

26. Given that the agreed outcome with respect to Categories 1 to 10 involved changes to the categories originally sought by Tobco, and that Ventia has succeeded with respect to Categories 11 and 12, costs in relation to this motion should be costs in the cause.

27. The following orders will issue with respect to Tobco’s Motion for Discovery dated 3 December 2024:

(8) The Defendant/Cross-claimant is to give discovery of the categories of documents specified in the Amended Schedule annexed to the Plaintiff/Cross-defendant’s Submissions for Discovery dated 12 March 2025 pursuant to rules 21.1 and 21.3 of the UCPR, but excluding categories 11 and 12, and excluding any document that is a communication with the Plaintiff/Cross-defendant.

(9) The Defendant/Cross-claimant is to produce and make available for inspection the documents discovered in accordance with Order 8 by 5 June 2025.

(10) The costs of this Notice of Motion will be costs in the cause.

Ventia’s Motion dated 11 October 2024 to set aside Tobco’s subpoenas to Transport for NSW, Seymour Whyte and Ventia filed on 4 September 2024

Ventia

28. The parties have agreed that Tobco’s subpoena issued to Ventia on 4 September 2024 should be set aside and I will make that order.

Transport for NSW

29. Transport for NSW responded to the subpoena served upon it by informing Tobco that it had no documents to produce. Tobco argued that the subpoena had been responded to and no further order should be made.

30. Ventia disagreed, and sought to have the subpoena set aside. Ventia relied upon the principles set out by the Court of Appeal in Secretary for the Department of Planning*, Industry and Environment* v Blacktown City Council [2021] NSWCA 145 as summarised in Keown v State of New South Wales [2023] NSWSC 1588 at [18] – [20]:

18. There was no issue about the applicable principles. They are as explained in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 and include:

“1. on an application to set aside a subpoena, the issuing party must identify some legitimate forensic purpose, the existence of which can fairly be regarded as justifying the call which the challenged subpoena makes: at [34];

2. such a purpose includes the pursuit of “a proper and fruitful course in cross-examination”, including as to credit: at [38] and [61]-[62];

3. It may be enough that it appears to be ‘on the cards’ that the documents will materially assist the subpoenaing party, for example, to test the evidence of a witness by comparing it with the witnesses’ earlier report, even if even if that party does not know whether those documents will assist or advance its case: at [39]-[40];

4. evidence that is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court may be subpoenaed, including documents of a third party: at [42];

5. apparent relevance is sufficient if it can be seen that the documents will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documents will so assist: at [43]-[44], [46], [55], [65];

6. there will be no legitimate forensic purpose in the circumstances identified at [45]-[46]:

1. unless the subpoena was not issued for the purpose of a pending trial, hearing or application; [sic]

2. where to require the attendance of a witness would be oppressive;

3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence;

4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party;

5. where the subpoena has been used for the purpose of obtaining discovery against a third party;

6. where to require a party to comply with a subpoena to produce documents would be oppressive;

7. where the subpoena has been issued for a purpose which is impermissible, as, for example, ‘fishing’...

7. documents sought which could reasonably be expected to throw light on some of the issues in the proceedings may be subpoenaed: at [48]-[50].

8. but discovery cannot be required: at [53];

9. documents which establish the facts in issue in the litigation and thereby enable justice to be done and so plausibly relate to an issue in the proceedings or “cast light” on such an issue, so long as the subpoena is not in other respects either too vague or oppressive: at [56];

10. an appropriately targeted subpoena which advances the overriding purpose specified in s 56 of the Civil Procedure Act, even though it may not be able to be shown that the documents either will or will be likely to assist the case of the issuing party: at [58];

11. if it can be demonstrated that the subpoena has been issued for some improper, illegitimate or ulterior purpose foreign to the litigation, the subpoena may be set aside as an abuse of process, in spite of the apparent relevance of the documents: at [70];

12. if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation: at [71]; and

13. the issues in civil proceedings are initially identified and defined by the pleadings and particulars; then further refined by amendments to the pleadings and upon the service of witness statements and affidavits.”

19. Accordingly, as the Chief Justice concluded at [80], a party will generally be able to demonstrate that it has a legitimate forensic purpose in issuing a subpoena where it can:

“(i) identify a legitimate forensic purpose for which access is sought; and

(ii) establish that it is ‘on the cards’ that the documents will materially assist his case.”

20. But “at least in civil matters, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.”: at [80]

31. Ventia argued that Tobco had failed to discharge the onus to prove the relevance of the material sought from Transport for NSW in the subpoena.

32. The subpoena sought material from Transport for NSW regarding any documents it had received from Seymour Whyte, Ventia or Smart Link Alliance from 1 August 2023 to date regarding, among other things, the safety performance of Tobco on the Western Distributor Smart Motorway Project and the suspension or cessation of works being performed on the project by Tobco. On the face of the subpoena, it was likely that the documents sought, had they existed, may have been relevant to facts in issue in the proceedings. On the face of the subpoena, it does not appear that the subpoena is an abuse of process.

33. On 1 October 2024 the subpoena clerk for Transport for NSW sent an email to the solicitors for the plaintiff, informing them that Transport for NSW had “no information” in relation to the subpoena and undertaking to inform the Court accordingly. On 11 October 2024, the Court received a letter from Transport for NSW which referred to the subpoena served upon it by the plaintiff on 4 September 2024 and said “TfNSW has undertaken searches and advises that we don’t hold any of the requested information”.

34. The subpoena served upon Transport for New South Wales has been answered and no further action is appropriate in relation to that subpoena.

35. The subpoena served on Seymour Whyte sought documents relating, among other things, to safety issues on the project involving Tobco, the cessation or pausing of works, the termination of the subcontract, and the engagement of other persons to perform the work in the subcontract. Seymour Whyte is a civil contractor and is the head contractor on the project.

Seymour Whyte

36. According to Tobco, Seymour Whyte has complied with the subpoena.

37. Ventia argued that the subpoena was effectively a substitute for discovery. It pointed to the similarity in the terms of the subpoena and the categories of discovery sought by Tobco against Ventia. I do not accept this argument. It is possible that Seymour Whyte has documents that Ventia does not hold, and which could not, therefore, be obtained in discovery from Ventia. Discovery generally has a wider scope than a subpoena, but documents sought by way of subpoena would almost invariably also be disclosed in a discovery exercise concerning the same subject matter. Seymour Whyte has not protested about the breadth of the categories sought and nor has it raised any complaint about the manner in which the documents have been sought. On the face of the subpoena, it is not apparent that it is an abuse of process.

38. Ventia further argued that sub-paragraphs 1(h)-(i), which seek documents referring to the engagement of another person to perform the works the subject of the subcontract from 1 August 2023 and documents referring to extensions of time to perform the work were oppressive. As Seymour Whyte has answered the subpoena without complaint, this argument falls away.

39. Ventia argued that the documents sought are not relevant to a fact in dispute. On the basis of the material before me, the documents regarding safety clearly have the potential to be relevant. It was further argued that the documents sought regarding extensions of time were not relevant. Again, it seems to me that such documents are potentially relevant on the basis of the pleadings, in that Tobco’s entitlement to the extensions of time is in dispute. Seymour Whyte need not be directly involved in that dispute, or in the process of the decision to refuse Tobco the extensions of time sought, in order to be in possession of documents which are relevant to the proceedings.

40. It was argued by Ventia that the subpoena was, in reality, de facto discovery. Seymour Whyte has not protested about the breadth of the categories of documents sought or the manner in which those documents have been sought. On the face of the subpoena, it is not apparent that it is an abuse of process.

41. I decline to set aside the subpoena served upon Seymour Whyte on 4 September 2024.

42. The following orders will issue with respect to the Notice of Motion of 11 October 2024:

(11) The subpoena issued by the Plaintiff/Cross-defendant to the Defendant/Cross-claimant filed on 4 September 2024 is set aside.

(12) The application for the balance of the orders sought in the Notice of Motion are refused**.**

(13) The costs of this Notice of Motion will be costs in the cause.

Ventia’s Motion dated 5 December 2024 to set aside Tobco’s Subpoena to Corey Farrell filed on 3 December 2024.

43. The plaintiff served a subpoena on Mr Corey Farrell with a date for production of 17 December 2024. Mr Farrell is a quantity surveyor who has been engaged by the solicitors for the defendant to provide an expert report for use in the proceedings. Mr Farrell has produced a report dated 4 November 2024. Mr Farrell was cross-examined at the hearing of the Notice of Motion.

44. The subpoena sought, in summary,

45. documents generated by Mr Farrell in the course of forming the opinions expressed in his report,

46. documents generated by Khalid Karim and Allen Ho (co-workers of Mr Farrell) for the purpose of preparing the report,

47. documents between Mr Karim, Mr Ho and Mr Farrell in relation to their work concerning the report,

48. documents “containing or attaching information, documents and instructions” provided to Mr Farrell by Thomson Geer Lawyers or by Ventia for the purpose of preparation of the report,

49. time sheets recording time spent by Mr Farrell, Mr Karim and Mr Ho in the preparation of the report.

50. Ventia argued that the subpoena should be set aside as an abuse of process “as it seeks categories of documents which are privileged”.

51. Ventia referred to the decision of White J in New Cap Re**insurance Corporation Ltd (in liq*) v Renaissance Reinsurance Ltd* [2007] NSWSC 258. White J said, at [45] – [50]:

45 The qualification in paragraph 4 of Lindgren J’s statement of principles set out in Australian Securities and Investments Commission v Southcorp Ltd is significant. There are many cases in which it has been held that privilege in material provided to an expert is not lost merely because the expert is called, or the expert’s report is served. In Bourns Inc v Raychem Corporation [1999] 3 All ER 154, Aldous LJ said (at 166-167):

“ Service of a witness statement, whether it be a statement of an expert or a witness to fact, waives privilege in that statement. As stated in the Marubeni Corp case mere reference to a document does not waive privilege in that document: there must at least be reference to the contents and reliance. In the present case there was no reference and no reliance therefore no waiver.”

46 In Dingwall v Commonwealth of Australia (1992) 39 FCR 521, Foster J, referring to Attorney-General (NT) v Maurice, said (at 524):

“ I have come to the view, upon a close consideration of the judgments in Maurice’s case that it cannot be regarded as authority for a wide principle that, whenever documents are sent to a potential witness as part of material being placed before him in order that he may provide a report of an expert kind to be used as evidence in a case, that those documents, ipso facto, although they had the protection of legal professional privilege, necessarily would lose it because of the doctrine of waiver. Maurice’s case does not go as far as that. It requires, certainly, that there be an indication that the documents were used in the preparation of the evidentiary document in a way that could be said to influence the content of that document. ”

47 The same principle was applied by Mansfield J in Tirango Nominees Pty Ltd v Dairy Vale Foods Ltd (No. 2) (1998) 83 FCR 397 at 400; 156 ALR 364 at 367, and by Nicholson J in Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89 at [46].

48 It may be said that the question of whether such privileged documents influenced the content of the expert’s report is a matter which the opposite party should be entitled to test. However, questions of privilege inevitably involve the striking of a balance.

49 In Thomas v State of New South Wales [2006] NSWSC 380, McClellan CJ at CL held that service of an affidavit attaching an advice of counsel which in turn referred to certain medical reports, waived privilege in the medical reports because they influenced the content of the advice (at [17]). The principle is the same. The same principle was applied by Young J in AWB Ltd v Cole [2006] FCA 1234 at [168]-[178] in holding that disclosure of the substance of legal advice impliedly waived privilege over associated material as the publication of the legal advice was inconsistent with the maintenance of confidentiality over such material which underpinned the advice.

50 As set out earlier in these reasons, Mr Smith, as he is required to do under the Expert Witness Code of Conduct, specified the materials used in support of his opinions. These did not include draft reports, or earlier letters of instruction, or communications with the plaintiffs’ solicitors.

47. The privilege claimed on behalf of Ventia is litigation privilege under s 119 of the Evidence Act 1995:

117 Definitions

(1) In this Division—

…

confidential communication means a communication made in such circumstances that, when it was made—

(a) the person who made it, or

(b) the person to whom it was made,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

confidential document means a document prepared in such circumstances that, when it was prepared—

(a) the person who prepared it, or

(b) the person for whom it was prepared,

was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

119 Litigation

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or

(b) the contents of a confidential document (whether delivered or not) that was prepared,

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

48. It was evident from Mr Farrell’s evidence that he considered that his engagement in relation to this matter involved two separate phases.

49. The first phase was reflected in a letter dated 21 May 2024 from Thomson Geer which said, among other things:

You are engaged for the purpose of the litigation and to assist us in providing legal advice to Ventia.

You may be required to provide a report which sets out your knowledge and/or opinion(s) in respect of questions that may be asked in a letter or letters of instruction.

50. The second phase was reflected in a letter dated 30 October 2024 from Thomson Geer, in which Mr Farrell was asked to provide a report for the purpose of the proceedings.

51. It was evident from Mr Farrell’s evidence that the documents required to be produced by the subpoena are likely to include documents which do not attract litigation privilege (for example the timesheets and some, if not all, of the material prepared for Mr Farrell by Mr Karim and Mr Ho), as well as documents which may attract litigation privilege.

52. In these circumstances, the appropriate procedure is for the subpoena to be answered, and an objection taken to the production of documents in relation to which privilege is claimed. Ventia has not made out its claim that the subpoena represents an abuse of privilege because all of the documents that would be produced would be subject to litigation privilege. I decline to set aside the subpoena to Mr Farrell. This Notice of Motion will be dismissed.

53. The appropriate costs order in relation to this Notice of Motion is an order that costs be costs in the cause.

54. The case management orders sought will issue.

Orders

55. Orders will issue in the following terms:

Defendant**’s motion to amend its Defence and Cross-Claim dated 2 December 2024**

(1) The Defendant/Cross-claimant is granted leave to rely on its Amended Defence served on 17 January 2025.

(2) The Defendant/Cross-claimant is granted leave to rely on its Amended Statement of Cross-Claim served on 17 January 2025.

(3) The Defendant/Cross-claimant is to pay the Plaintiff/Cross-Defendant’s costs thrown away as a result of the amendments to the Defence and Cross-Claim.

(4) The costs of the Defendant/Cross-claimant’s Notice of Motion in relation to the Amended Defence and Amended Statement of Cross-Claim will be costs in the cause.

Defendant**’s Motion for Discovery dated 5 December 2024**

(5) The Plaintiff/Cross-defendant is to give discovery of the categories of documents specified in the Schedule annexed to the Defendant/Cross-claimant’s Notice of Motion for discovery dated 5 December 2024 pursuant to rules 21.2 and 21.3 of the Uniform Civil Procedure Rules 2005.

(6) The Plaintiff/Cross-defendant is to produce and make available for inspection the documents discovered in accordance with Order 5 by 5 June 2025.

(7) The Plaintiff/Cross-defendant is to pay the costs of the preparation by the defendant of its written submissions for the Court with respect to this Notice of Motion. The balance of the costs for this Notice of Motion are to be costs in the cause.

Plaintiff**’s Motion for Discovery dated 3 December 2024**

(8) The Defendant/Cross-claimant is to give discovery of the categories of documents specified in the Amended Schedule annexed to the Plaintiff/Cross-defendant’s Submissions for Discovery dated 12 March 2025 pursuant to rules 21.1 and 21.3 of the UCPR, but excluding categories 11 and 12, and excluding any document that is a communication with the Plaintiff/Cross-defendant.

(9) The Defendant/Cross-claimant is to produce and make available for inspection the documents discovered in accordance with Order 8 by 5 June 2025.

(10) The costs of this Notice of Motion will be costs in the cause.

Defendant**’s Motion dated 11 October 2024 to set aside Tobco’s subpoenas to Transport for NSW, Seymour Whyte and** the Defendant filed on 4 September 2024

(11) The subpoena issued by the Plaintiff/Cross-defendant to the Defendant/Cross-claimant filed on 4 September 2024 is set aside.

(12) The application for the balance of the orders sought in the Notice of Motion are refused**.**

(13) The costs of this Notice of Motion will be costs in the cause.

Defendant**’s Motion dated 5 December 2024 to set aside Tobco’s Subpoena to Corey Farrell filed on 3 December 2024**

(14) The application in the Notice of Motion is refused.

(15) The costs of this Notice of Motion will be costs in the cause.

(16) The Plaintiff/Cross-defendant has leave to file and serve an Amended Defence to the Cross-Claim within 14 days of the date of these orders.

(17) The Plaintiff/Cross-defendant has leave to file and serve an Amended Reply to the Defence within 14 days of the date of these orders.

(18) The Plaintiff/Cross-defendant is to file and serve its evidence in response to the Cross-claim by 6 weeks of the date of these orders.

(19) The matter is listed for directions before the Judicial Registrar on 27 June 2025 at 9:30am.

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