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[2003] VSC 261
Supreme Court of Victoria
2003-07-17
HARPER J
Original judgment source is linked above.
"I will be checking all old AZIMUT [sic] records, however will be putting in place a procedure to start a new inspection program within 2-3 weeks. We do all accessible equipment maintenance Review and improve records and make location plan. All records to MP5 data base."[175]
Mr Braddock has also written by hand (as "8/9") the date "8 September" in the "Start Date" column and (as "15/9") the date "15 September" in the "Target Completion Date" column. The entry under "Audit Item" is unaltered, save that the "cloud" has been replaced by the less artistic, and less emphatic, typewritten bracket: "(Annual inspection to AS 1851.6)". The general message remains the same, except to the extent that the import of the expression "I will...be putting in place a procedure to start a new inspection program within 2-3 weeks" has been amended to read, in effect, "We do all accessible equipment maintenance...[with a] start date [of] 8 September [and a] target completion date [of] 15 September". It is significant that, despite the absence of a full stop after the phrase "We do all equipment maintenance", the next word - "Review" - begins with a capital letter.
"I will be checking all old AZIMUT [sic] records. We do all accessible equipment maintenance review and improve records. What about those in shafts - Procedure in place ?? All records to MP5 database."[179 ] (Italics as in original)
The start date remains 8 September but, for the work in relation to equipment maintenance and improvement of records, the target completion date is now 30 September. It is 8 December in relation to placing all records on MP5. So far as the evidence discloses, no representative of the Trust asked what was meant by the second sentence in that passage: "We do all accessible equipment maintenance review and improve records."
"In respect of the fire dampers, Ian Gardner had proposed an inspection of the dampers in order to complete a location schedule. In my schedule, I proposed a start date for that inspection of 8 September 1997, and a completion date of 15 September 1997."[180]
Two points may be made about this. First, the Meinhardt audit does not speak of "an inspection of the dampers in order to complete a location schedule". Still less does it suggest that the dampers should not be serviced before such completion, although during the course of his evidence Mr Chelberg put this forward as an arrangement that had Mr Gardner's approval. I will examine Mr Chelberg's concept of "inspection to locate" in detail below.[181]
Secondly, Mr Chelberg's "start date" must, in the context of Command's schedule of works, mean the date of commencement of the works necessary if the dampers were to comply with AS 1851.6. At the very least, all those who read the document without any knowledge of what might be in the author's mind would be entitled to come to that conclusion.
"(g) [Hinds Blunden] sought an undertaking from Command that the essential services items would be completed in accordance with the schedule, that is progressively up to 3 months. Further [Hinds Blunden] said that they did not want the day to day operation of the building to be compromised by diverting Peter Chelberg to the Audit works. (h) Command (Owen Braddock) stated that they took this matter very seriously and gave Command's assurance that the programme would be met without affecting the day to day matters." [190]
Mr Duck's evidence was that he sought this undertaking from Command because he had a concern about Command's manpower levels at Nauru House. He wanted to be assured that it could meet the deadline set while also attending to the everyday operation of the building.[191]
The obligations assumed by Command in relation to fire dampers were therefore defined by that document. Mr Chelberg however had to convince me that it did not mean what it said. He failed. He denied that the description in the "Action/Comment" column should be read as including a commitment that Command would "do all accessible equipment maintenance".[193] Although, under cross examination, his answers were equivocal, his position appeared to be that Command had promised only to "do all accessible equipment maintenance review" (whatever that might encompass). I reject this reading; moreover, in my opinion Command never thought that it should, or would, be read in the sense contended for by Mr Chelberg.
with the Trust's engineers about the work to be done on the fire dampers. The agreement's effect, according to Command, was that, because it would not be possible to perform that work in the three months generally allowed following the audits, no attempt would be made to do so.[210] Rather, maintenance would be deferred pending the preparation of a location schedule. Thus Mr Chelberg, in viva voce evidence in chief, while discussing a draft planned preventative maintenance data sheet he had prepared for fire damper maintenance which he submitted to the weekly meeting on 12 November 1997, said:
"What the purpose of that was ... for Ian Gardner to review that document and agree that when the maintenance works were done, that is what had to be done. When we started the procedure of the fire dampers back in September, Ian and I discussed the fact that there were no schedules, there were no records of what had to be done, let's create them. I'll give you the documentation, you approve it, then we will go from there, and that's why it was issued to Ian in draft form."[211]
"As part of the Essential Services Audit, a fire damper schedule was necessary. Having checked through the available Environ drawings, O & M manuals, plant history cards and the ASIMUT schedule it became evident to me that there was no schedule available. Where to from here, so I [discussed] the problem with Clive who had a 2 year history start on me. I recall something to the effect - how many fire dampers are there in the building, "I don't know, but if I start at the top and work my way to the bottom, I can produce a list from that inspection check", to which we agreed that that was the only way we could establish a fire damper schedule. We continued to discuss his progress on this difficult task. Clive handed me a neatly presented tabulated form listing all floors that I accepted as having dampers. Subsequently, Karyn Campbell then proceeded to type this schedule into an Excel spreadsheet. At the same time I was in contact with Civil & Civic records division to establish if they were able to provide any additional information across a number of areas. At no time during the period do I recall pressuring Clive into a corner just to finish off the list, that certainly is not me. When this list was presented to Meinhardt I said something to the effect that we had produced this list by going from floor to floor to establish the damper location and condition."[234]
(h) How did Command respond to the Meinhardt audits' criticisms about fire dampers?
"Clive offered to inspect the fire dampers on each floor and to prepare a schedule from that inspection, and I asked him to proceed with that inspection. The purpose of the inspection was to locate and record the location of the fire dampers. During the inspection, any obvious problems such as obstructions would be noted and recorded, but the inspection process did not involve effecting repairs or resolving malfunctions. That was to occur later, if required, and would be carried out by an appropriately skilled contractor."[239]
"To carry out the correct inspection according to the Australian Standard, you need to physically remove the fusible link, allow the damper to drop and ensure that there's no obstructions such as builder's debris or damage to the damper. After completing that operation the damper is reset back to its correct position and the fusible link reinstated. It is then deemed that the fire damper has been inspected according to the relative standard. May I add that in order to carry out that inspection it's a requirement that you would correctly fill out a form that would acknowledge that you have physically inspected, tested and reinstated that particular fire damper. A form should be included for each and every fire damper in the building."[251]
"Q: By placing that tick or ticks opposite the column designated 52 [ie. level 52 in Nauru House] you meant the reader to understand that you had gained access to the fire damper or fire dampers, that you had checked their integrity and that you had found their integrity to be intact ?
"Following that discussion with Mr Chelberg I began inspecting the fire dampers in the building. I commenced on level 53 and worked my way down the building. The task of inspecting the fire dampers is time consuming. They are located in the ceiling. Access is by ladder. I was the only person carrying out the inspections."[253]
(ii) The creation of the fire damper location schedule
referred to as the "time lines") as given in the Command schedule of works and in the Priority Works Schedule would become totally unrealistic. That is what happened. By the end of September Mr Butler had located only a fraction of all the dampers. By mid October, when the fire damper location schedule was finally given to Mr Butler, it must have been as plain to him as it doubtless was to Mr Chelberg that at the then current rate of progress the task of locating all the dampers would not be accomplished for weeks to come. Of course, however, the current rate of progress depended in part on the nature of the work that Mr Butler was doing. I have, at paragraphs [227]-[ 242] above, examined the evidence and set out my conclusions on this point. It is now necessary to establish what in fact was done.
(iii) What had been achieved by the time the fire damper location schedule had been completed?
(a) A comparison between what Mr Butler said he was doing and the documentary evidence
It certainly does not detail either what work was effected or when it was done: the "handwritten comments" which Mr Butler made on the document and to which he refers at paragraph 20 of his affidavit sworn on 12 February 1998 add nothing of importance in this context.[265]
Q: What was the reason why you did with some and not with others?
A: There was a small number ... which would require after hours access to carry that work out [without] disrupting the office work...
Q: You did tell me that every tick that you had placed on this document [the fire damper location schedule] represented a fire damper, the integrity of which was intact. Is that still your evidence ?
Q: What about the fire dampers in those tenancies to which you could not gain access except after hours ?
A: I inspected it and took it upon myself to say that the thermal link was in place and the damper appeared to be in good condition and therefore it would be in operating condition.
Q: So you made those inspections after hours where you could not get access during [office] hours, is that right ?
A: No, I did not make the inspections after hours, it was pointed out to Chelberg that we would need to make arrangements to gain access to properly test the dampers.
Q: I'm still puzzled about the signification of a tick against those particular fire dampers, did you or did you not satisfy yourself in respect of those dampers where a tick appeared that the integrity of the damper was intact?
A: I took it upon myself to place the tick in that area bearing in mind that the [inspection checklist for individual fire dampers] form you have there did not exist and I was simply carrying out a visual ... test ... to the best of my ability so that having in view of the time constraints that if I'd have had time to go back and physically inspect those dampers I would have done so at a later time."[268]
"Fire dampers reported as inspected and checked recently have clearly not been. Dampers are an essential service required for fire safety and have a statutory maintenance requirement."[286]
"Check and inspect fire dampers. Reports from [Command] indicate all were recently tested and inspected. Our inspection revealed that this is not correct."[299]
"Fire dampers located within ductwork and in penetrations in fire rated construction do not appear to have been operated as required for maintenance based on the presence of debris in fire damper tracks, paint on fusible links and inadequate access provisions. Fire damper maintenance has not been carried out in accordance with AS 1851.6 as required by the Building Regulations. Specific items include: Debris in the lower tracks of fire dampers located in plantroom walls on level 52. Painted fusible link within the kitchen exhaust system on level 51. (Fusible links must not be painted)."[301]
(c) What was found when the fire dampers were serviced in 1999 ?
(i) What are the consequences of a failure to maintain the fire dampers?
eleven related to access; one - (viii) - related to inability to test its operation; while others related to the incorrect installation of an indeterminate number of fire dampers. It is not clear whether inability to access is the same as inability to locate. Mr Watt was not aware of any action which might have been taken to obtain such access.[328] In any event, it may be that out of some 180-200 dampers only nine - together with that mounted upside down and those mounted horizontally - were defective. And, on the evidence before me, it would be impossible to conclude that Command was responsible for defects in mounting. It is much more likely that the builder of Nauru House is wholly or partly to blame. Of course, Command ought to have discovered any defect of that kind; but so ought its predecessor or predecessors. For the omissions of the latter, it is not Command which must shoulder the responsibility.
"Smoke control systems installed comprise smoke lobby pressurisation and purge type smoke exhaust via the main air handling system. The system no longer meets current regulatory requirements due to regulatory changes, and consideration should be given to upgrading."[332]
"Nauru House does not have stair pressurisation fans, which are fans on the roof that suck air from the roof and push it down the stairwell in the event of a fire which would prevent smoke and fire spreading from floor to floor and into the stairwells if a fire occurred. Because of that the correct operation of the fire dampers is vital."[334]
(j) Did Command falsely represent that the fire dampers had been maintained when they had not?
(ii) What Mr Chelberg told the Trust about Command's work on the fire dampers
Mr Griffiths, who was present at the meeting on 20 October 1997, gave evidence that he had no recollection of Mr Chelberg saying that the "format" of the schedule was completed; as best he could recall, the meeting was told the schedule of dampers itself was complete.[353] He had nevertheless to concede that Mr Duck's notes include the word "format".[354] The minutes are consistent with Mr Chelberg's evidence, to which I have already referred, that on 15 October he gave a fresh, entry-free, copy of the fire damper location schedule to Mr Butler. I reject any suggestion that Mr. Chelberg announced the completion of a schedule showing that all fire dampers had been serviced. I also record my finding that Mr Griffiths was an unreliable witness. He was, in my opinion, only prepared to tell the truth when it suited him. That was not often. What is more, he (like Mr Hughes) lacked the engineering expertise of Messrs Duck and Gardner. Their evidence about conversations regarding fire dampers must be examined against this background.
"10. Fire Dampers - records available for review 31/10, but not complete"[355]
The minutes later record that "essential services `works' are now completed and the remainder is chasing up documentation" (my italics). Mr Chelberg gave evidence that this was a reference to (a) the typed fire damper location schedule, which was to be ready by 31 October, and (b) a draft Schedule of Planned Preventative Maintenance ("PPM") which, it will be remembered,[356]
was required by clause A3 of Schedule A of the maintenance agreement but which was yet to be prepared. He denied telling the meeting that the fire dampers had been maintained.[357] If his denial is true, then in recording the completion of essential service works the minutes are inaccurate: work on the fire dampers - which are undoubtedly an "essential service" for these purposes - had not even begun. For his part, Mr Duck said that he could not recall Mr Chelberg saying that the purpose of "inspecting" the fire dampers was to "locate" them. He would have recorded such a statement in the minutes. Not only that, but he would have made his displeasure known: he was concerned to ensure that Command attended with expedition to the essential services items.[358]
"Fire Dampers - schedule established - 70% checked."[363]
"A: Mr Chelberg would have indicated to us at the meeting that he had inspected and completed the maintenance on the fire dampers and that's why I used the words, as I've got there in parenthesis [sic] in the notes, `PC all completed and inspected'.
A: The word `completed' would convey to me, because they were my personal notes, that the maintenance had been completed.
Q: Sorry, Mr Hughes, you said earlier that he used the word `repair'?
A: In the context of the meeting that word would have been used".[372]
" Fire Dampers - complete & inspected - documentation finished 3/11 - to go to IG today"[374]
"6. Fire damper check documentation to be completed [Command]
7. Documentation sign-off provided. Meinhardt to check."[378]
(when the weekly audit meeting was told the inspection was 70% complete) and 5 November 1997 (when the meeting was told that it was 100% complete). This, Mr Chelberg was asked to concede, was particularly so because the intervening days included the weekend and Melbourne Cup Day. Mr Chelberg's evidence was that, even though it had taken two months to inspect 70%, he expected the remaining 30% of the dampers to be located within two to three weeks. Mr Butler had by now reached the lower levels of Nauru House. The configuration of the duct work throughout this portion of the building was similar.[383] In particular, the tenants in the lower levels (level 16 and below) had not built up to the central core shaft. Accordingly, as Mr Butler[384] and Mr Chelberg[385] agreed, access to fire dampers was not the problem it had been on the upper floors. (It should be noted, however, that evidence given by Mr Watt seems to contradict this. He said some of the fire dampers on levels 17 and below were particularly difficult to locate.[386])
(c) the time constraints to do the work (see paragraphs [ 319] and [320] above); and (d) the absence of any note in Mr Butler's timesheets for that period. [392] Command relies on the entry in Mr Butler's diary for 31 October 1997 which says: "Complete inspection to fire dampers at various locations, identification of dampers, etc."[393 ]
"Q: When you referred to fire dampers all completed and inspected, do you recall the substance of the discussion ?
A: The discussion was based on the premise that the inspection schedule had been completed. The document was now able to be completed as a schedule as to the location of each and every fire damper within the building.
Q: When there's a reference to details being given to Ian Gardner today, what does that relate to ?
A: That was a reference to a schedule that was being given to Ian along with a maintenance data sheet that was to indicate what had to be done for the maintenance to be carried out, which had only just been completed by myself."[396]
He conceded in cross examination that the word "maintenance" was not recorded in the minutes and he could not recall it being discussed.[399] He also agreed that what was "complete" was whatever documentation was given to Mr Gardner. This was the fire damper location schedule (which, according to him, he did not see).[400 ]
(iii) Allegations that Command's documentation was part of an attempt to deceive
; (c) a "certification statement" signed by Mr Chelberg for and on behalf of Command; and (d) the "Plaintiff's monthly report for December 1997". When so read, it can be seen (so the Trust submits) that the Chelberg statements were deliberately deceptive.
Eight boxes are coloured blue to indicate that the dampers in question could not be located.
B. Mr Butler's evidence about "signing off" the fire damper location schedule
"19. On or about 6 November 1997 I discussed the matter [ie. the progress of inspection of the fire dampers] again with Mr Chelberg. He said that he had sent a report to the [Trust] the previous day in which he had "signed off" on the inspection of the fire dampers. I told him that I had not completed the work. He told me that I should simply fill out the schedule which he had given to me and sign it off as if the work had been completed. I said that it would be impossible to finish the work in the next few days as he required. He said that he did not care, but that he wanted the schedule completed. He said, "I don't care if it can't actually be done, provided it is done `on paper'. I must have the report by Friday."
20. Realising that it was impossible to undertake the task in the time which he had specified, I returned the schedule to him either on the afternoon of Thursday 6 November or on the morning of Friday 7 November 1997. The schedule contained my handwritten comments reflecting what I had found during the work which I had performed. In the schedule I had ticked off work as having been done, when in fact it had not been done.
21. At the time I gave the document to Mr Chelberg, I told him that I had followed his instructions in that I had ticked off all of the items as having been done, even though they had not (and could not physically have) been done in the time. I told him that I wanted that fact completely understood. He said, "The report's done that's the main thing."[423]
For the moment, so that the comparison can the more readily be made, it is helpful to note that according to Mr Butler, the approach by Mr Chelberg occurred in early November 1997; the request was to "sign off" on the "inspection" of the fire dampers (but as it happened, in none of its versions does the fire damper location schedule bear any signature at all); Mr Butler's handwritten comments in no way alter the character of the document as one designed to show no more than the location of each damper; and by early November it must have been obvious that the dampers were not installed at irregular intervals throughout the building but rather according to several distinct patterns which by then were themselves obvious. As I recorded in paragraph [153] above, Mr Gardner gave evidence that a person familiar with the typical floor layout could - at least in theory - readily locate each of the fire dampers on a particular level.[425] If Mr Butler was not aware of those patterns before his endeavours began in about September, he must have been well aware of them by 6 November. Completion of an accurate schedule should therefore have presented no difficulty, although propriety demanded that the presence of all dampers be confirmed by their being sighted first.
of what in turn Mr Hughes told him - information upon which Mr Fernando based his conclusion that Command could not be trusted .
Thus, taken by itself, the document is (at worst) misleading only to the extent that it might deceive a reader into thinking that all fire dampers had been "inspected" (as opposed to being merely sighted) by Mr Butler on or before its completion - by the insertion by Mr Butler of a series of ticks and some handwritten notes.
C. The evidence of Messrs Hughes and Griffiths
"A: Mr Butler spoke of a number of things in general. As I said, it was a general conversation that he had with me because of his concern at the predicament that he was being put in.
Q: What works did Mr Butler tell you he'd been asked to sign off as complete when the works hadn't been carried out in mid October 1997 ?
A: There were works in relation to, as I understand, chillers and the boilers within Nauru House.
Q: What works did he tell you hadn't been - that he'd signed off as complete when they hadn't been carried out ?
A: Mr Butler spoke to me in general terms, I am not an engineer and I can't recall specifically the technical nature of the works that he was referring to, he spoke in generality.
Q: So you will say on oath to this court that Mr Butler told you that he'd been asked to sign off as complete works on chillers and boilers when those works had not been carried out ?
A: My understanding of the conversation was he was talking in generality about specific things in the plant rooms in relation to things like chillers and boilers.
A: As I said, I'm not an engineer, so I did not appreciate the things that he was referring to me specifically."[465]
"Clive indicated that the Asumit [sic] system was totally unsuitable to Nauru House. There were items of equipment that still had not been included and the maintenance on listed equipment was not being carried out regularly. Lack of resources meant that it was not possible for the work to be completed and, under instructions, he was being asked to tick off maintenance checks that were, in fact, not being done."
The memorandum, which also records Mr Butler's complaints about the level of staffing, was sent to Mr Duck.
in which he refers to Mr Butler's indication that "the Asumit system was totally unsuitable to Nauru House" is relevant in this context. Following the reference from Mr Griffiths, Mr Duck met with Mr Butler on 10 October 1997. In his diary for that day, the latter wrote of that meeting:
"I went to Nauru to see Clive [Butler] and find out what he's told John [ie John Griffiths] - Basically the PPM schedule [ie ASIMUT] is useless and has included a number of tasks that are not required, ex: greasing seal bearings. Some of the maintenance is not required or not applicable to the equipment to which it refers - in these cases the items are ticked off and in all other cases the maintenance is carried out."[478]
As I understand it, the ASIMUT system occasionally and inappropriately recorded as necessary tasks which were not. If these were not "ticked off" by the means for which the system allowed, it would not only continue (wrongly) to indicate to the uninitiated observer that the maintenance of certain items had been neglected; it would also continue to generate (useless) reminder check sheets, possibly many pages in length. This, it seems to me, is an entirely plausible explanation for the fact that items of work were "ticked off" even though no work had been done.
"In or about the beginning of December 1997, I was informed at a meeting with Geoff Hughes, Phillip Blunden, possibly Chris Lang, and the Trust's legal advisers that Command had reported that maintenance work, some of which was critical, had been done, when in fact it appeared that it had not been done. In this respect, I was told that Clive Butler, a former Command employee who was responsible for carrying out maintenance in Nauru House, had informed Geoff Hughes and John Griffiths that he had been instructed to sign off as complete, the inspection and repair of fire dampers in the building, when in fact Butler had not completed that task."[479]
"Q: Did you ask how many fire dampers were involved ?
A: I did not. One was too many Mr Golvan, you cannot have a situation where fire dampers do not operate.
Q: If it was drawn to your attention that there was one fire damper that hadn't been inspected and repaired in the building, that would have been sufficient for you to have formed a decision to terminate the maintenance agreement ?
A: Mr Golvan, the issue concerning the fire damper was essentially more than just the fire damper. It represented a total breakdown of the confidence and integrity of Command. It was a total lack of confidence in the ability of Command personnel to carry out what was entrusted to them. As I said, there are three pillars, it was not necessarily the fire damper per se.
Q: Mr Fernando can I ask you a question please. So are you saying that if it had have been one fire damper that would have been sufficient for you to have formed a decision to terminate the contract, yes or no ?
A: Somehow I think the question is framed incorrectly Mr Golvan. You are linking the termination to the fire damper. Your Honour with respect I don't know why that linkage is immediately made. The fire damper is one of many issues and the termination doesn't rest purely on a fire damper. In fact the fire damper features in the overall context of Mr Clive Butler having been asked to record that it had been serviced when it had not and that is in fact a very significant aspect of the fire damper issue."[487]
"Numerous breaches by Command of its contractual obligations have been identified by a former employee of Command; and these are being progressively confirmed by investigations carried out by Meinhardt.
If the Trust so chooses, these breaches (and other information provided) would form the basis of a significant damages claim against Command."[494]
It is not clear what these "progressive investigations" were. Mr Gardner did not carry out his inspection of Nauru House until after termination. Nor is there any evidence that he was told about the "numerous breaches" said to have been identified by the "former employee" (which, of course, must mean the soon-to-be engaged Mr Butler). In my opinion, this paragraph was not that of an objective, careful and disinterested adviser.
"You mentioned some matters which I would like to follow up with you in general terms, the Maintenance Schedule in the contract is generic. The Asimut maintenance schedule is specific to the building and was subject to regular updating and amendment as will its replacement. Preventative maintenance schedules are living documents. They reflect not only supplier's (appropriate) recommendations but also the experience of the people carrying out the work. For example some maintenance tasks which are carried out monthly and show no signs of deterioration of reliability may be extended to quarterly. On the other hand equipment that has a inherent reliability problem may have its periodicity shortened. Command does not deliberately avoid carrying out maintenance, this would simply be reflected in the increase in risk of breakdown and unexpected cost. Our goal is to ensure that the Trust's assets are secure and that the equipment continues to provide the services intended and above all that the Tenants are satisfied."[495]
"Meanwhile, in the past several weeks the Trust's legal position has been strengthened on account of statements made by an ex-employee of Command. The statements recorded suggest that Command may have provided the Trust with falsified reports."[497]
"In the event that the Trust does conclude that it would be best to terminate, in any case, the current circumstances provide the Trust with its best opportunity to date to get a favourable outcome in the courts. This is based on expectation that the representation made by Command's ex-employee could be substantiated and that the employee would be available to provide evidence on behalf of the Trust."[498]
(iv) Statements made in documents submitted by Command in November and December 1997
As I have already noted (see paragraph [316] above) the minutes of the meeting held on 12 November 1997 record: "Fire damper documentation to be completed" and "Documentation sign-off provided. Meinhardt to check."[502] The expression "Documentation sign-off provided" appears to be a reference to the "Essential Services Register November 1997". This, it will be remembered, is dated 12 November 1997, the date of the meeting at which it was tabled; it is also the document identified in the Trust's further and better particulars of 15 November 1999 as the "Nauru House Essential Services Register of Completed Maintenance Services Electrical, Fire & Mechanical".[503]
"The tests nominated below have been carried out and completed by Command Energy and its Contractors:- ... The supply and return air fans, fire dampers, electric motors, air filters, and lint screens, have been tested in accordance with AS 1851.6."
which bore the date 15 October 1997 and which was the template for the fire damper location schedule. As well, the bundle contained blank versions of the tables headed "Air Conditioning, Mechanical Ventilation, Fire Dampers (Level 1)"(and the equivalent for levels 2, 3 and 4) to which I have referred in paragraph [376] and following.[521] Although pro forma planned preventative maintenance data sheets for many other individual essential services items were included in this bundle, at that stage there was no such set for individual fire dampers.
(together with "signoff schedules and supporting documentation letters from contractors")[525] may not have been provided to Mr Gardner until the meeting on 12 November 1997. According to Mr Chelberg "[t]he purpose of this document was to set out the inspections to be carried out annually and five yearly in relation to the fire dampers, which included checking each of the fire dampers for any obstructions and ensuring they were working correctly."[526] Once it was approved by Meinhardt, this planned preventative maintenance data sheet would be put into MP5, so that instructions could be issued at the appropriate time to the maintenance team that would perform the work.[527] This data sheet did not purport to record any work actually done on fire dampers.
"During that meeting Jeff Duck telephoned Ian Gardner of Meinhardt and after the conversation Jeff Duck confirmed that Ian Gardner was comfortable with Command's Final Audit Review and the other documentation submitted by Command in relation to the Essential S ervices Audit works program, and he thought the [extended] date of 8 December 1997 for completion of the works would be met."[529]
(v) Did Command carry out its alleged intention to service the fire dampers in early 1998 ?
He also had to concede that the MP5 system was not up and running at the time the statement was made, although records had been placed on it.[563] In dealing with operational mechanical equipment, he sought to draw a distinction between such things as fans and pumps on the one hand, and fixed mechanical items like fire dampers on the other. He acknowledged, however, that fire dampers were included in the mechanical equipment category.[564]
. The "works" are those noted in that document. Thus, Mr Chelberg gave evidence that when Mr Braddock proffered the three month undertaking in September 1997 he was referring to the work as defined by the schedule of works. Likewise (so Mr Chelberg maintained), statements at the end of 1997 that all essential services audit works had been completed referred to those works as described in that schedule.[569] These do not necessarily correlate with the Meinhardt audit recomm endations.
"On 24 November 1997 Peter Chelberg and I attended a meeting with Geoff [sic] Duck of Hinds Blunden and Geoff Hughes of Gardner + Lang to discuss the essential services program. During the meeting Geoff Duck stated that Meinhardts were comfortable with what [Command] had done and there were no outstanding items except for some tidying up of documentation. On 8 December 1997 all items referred to in the essential services program had been completed except for some minor documentation items."[571]
But all accessible equipment maintenance had not been done. Still less was it true that all the fire dampers had been serviced.
At best, it may be observed that it is one thing, as (it perhaps might be said) with the December 1997 monthly report, to omit by oversight; it is quite another, as with the "certification statement", to include by oversight.
(vi) The significance of fire dampers in the context of the contractual relationship.
Mr Chelberg prepared and forwarded to Mr Gardner on 3 November 1997 a bundle of pro forma essential services draft documents, including PPM data sheets (although not one for individual fire dampers) and the blank fire damper location schedule. On 5 November 1997 further documents were sent to Mr Gardner, this time including the completed schedule. The proposed PPM data sheet for individual fire dampers was given to Mr Gardner on 12 November 1997.
"We discussed a number of points until we got to staffing and then Geoff Hughes started. He was most annoyed about an incident at 7.00 am this morning, what could I tell him about it, I honestly [k]new nothing about any incident that had happened. Geoff then proceeded to tell me that I was unable to manage my contractors at all and that he would be "going for my ass". I immediately asked John Griffiths did he hear that and he replied "Yes". To this question Geoff became more aggressive and red faced. ... We started to discuss our PPM sign off for the November signoff, he accused me of putting the blame for the lack of maintenance on Clive Butler an ex-employee, to which I explained that that was not the case. After further discussion, he had become most aggressive and retorted to me that I was "incompetent". He then burst into a further tirade about Command and its contractors, how he had to have other contractors cleaning up after them, he should not have to put up with it and that he would not tolerate it any longer. I have put these comments down on paper for the record because I do not like being threatened in this way and am concerned at what further actions Geoff may take to get at myself and Command."[593]
(7) Allegations Concerning Other Items of Equipment
This was handed to Mr Gardner by Mr Chelberg on 12 November 1997. In the "Electrical Services" portion of that document there is a sheet headed "1.4 COMMAND ENERGY - EMERGENCY POWER SUPPLY".[601] It is divided into columns. In the column headed "Unit" is an item "Batteries and Charger"; and in that headed "Task" are inserted the words "Freedom from corrosion". A tick appears against that item. (The tick is in yet another column. It is headed "month". Nothing seems to turn on that, because the tick clearly indicates that the batteries and charger in question are free from corrosion.)
"... following the audit inspections by Meinhardt, Clive Butler had been inspecting and carrying out maintenance work on the low voltage batteries including cleaning and removal of corrosion on an ongoing basis since June / July 1997, which was continuing."[606]
"In order for the generator to work when there is a power failure ... if the switchroom batteries are not in order then the generator will not `kick in' and the essential services to the building would be put at risk."
"1 hydrant - diesel electric pump 1 hydrant pump 1 sprinkler - diesel pump valves and tanks cold water booster pump: level 52 fire service make up pump 2 water tanks water treatment station 2 air compressors 1 air drier"
"The fire services of Nauru House consisted of the FIP [Fire Indicator Panel] on the ground floor of the building, fire detectors and alarm systems (including smoke detectors), fire hose reels, fire hydrants and associated pumps, fire mains, the sprinkler system, the static water storage tank and the EWIS."
"77. I was informed by Mr Chelberg on 12 November 1997 that all of the maintenance necessary in respect of the fire services had been carried out. However, during our inspection [on 28 January 1998] we noticed there was a missing lock and strap on the annubar test line gate valve at control valve station No.4. This indicated that equipment at least has not been inspected and appropriately maintained. In addition the sprinkler system diesel pump set showed only 18 hours running time. It is a requirement of the Australian Standard AS 1851.3 that the pumps are run for 10 minutes (minimum) each week. Had that occurred the meter should have shown accumulated hours of at least 36 hours. There is no record of gauge resetting or replacement which would explain the low running time recorded on the meter.
78. Although I described these defects as minor and relatively easily fixed, I expressed my real concern about `the correct and stabled [sic] operation of the existing fire alarm system.' I noted that `the history of the system indicates spurious and erratic alarms (had) occurred' and therefore my suspicion that the system was vulnerable."[618]
"Based on my discussions with, and written confirmations received from, Flame and Ziton, at the 12 November meeting I informed Ian Gardner that all fire services equipment within Command's responsibility had been maintained and serviced pursuant to the contracts which Command held with those contractors."[619]
(a) Meinhardt observed that the strainers to the pressure relief valve should be cleaned and serviced. Flame in response said that this item is serviced annually, unless an earlier problem is detected. The valves were only commissioned in June 1997. Routine service was therefore not due. Nor was any problem evident.
(b) According to the February report, a lock and strap was required on annubar test line gate valve at control valve station No. 4. Flame said that it was unclear which valve was meant; but if the reference was to the choke valve on the annubar line, then there is no requirement that it be locked.
(c) Flame did not address Meinhardt's statement that "various LED's either broken or not working on interface modules". The omission cannot work to the Trust's advantage, however, because I do not know what "LED's" are.
(d) Finally, in response to Meinhardt's comment that the sprinkler system diesel pump set "hours run meter" only showed 18 hours run, (a circumstance which led Mr Gardner to suspect that the pumps had "not run and [been] tested as per Australian standards") Flame asserted that the hour meter was operational. Inspection of the records showed that the pump had operated for approximately 6.5 hours over the last twelve months "which is consistent with that required by the Standard."
"We don't have the money. Is there a chance you can do the overhaul yourself, otherwise it's a $25,000 cost."
Mr Butler having given a negative response, he was told to change the oil and filters. This, the Trust alleges, was all that was done. It was inadequate. And it did not qualify as an "annual service".
"which can result in compressor damage if not rectified." He did not say that he found the compressor had in fact been damaged. Finally, he found that chillers No.1 and 3 were overcharged with oil.
"The remaining compressor on chiller 1 and the gearboxes on all three chillers are reported to have priority 4 and 5 status. [sic] Indicating that these components are either suspect of a fault or in good working condition requiring no further attention at least in the short term."
"There was difficulty in obtaining satisfactory end caps from Carrier for chiller No. 4. Colin Bell attempted to fit two different sets of end caps as supplied by Carrier but they would not fit. Finally, he arranged for the manufacture of special brass caps, which he supplied on 19 January 1998, the day Command was refused entry to the building. This explains why, as commented by Ian Gardner in paragraph 12 of the Gardner affidavit, the end caps were not replaced earlier as I had indicated they would be, and why the end caps were never fitted. Colin Bell later delivered them to my office in South Melbourne where I photocopied them. This also explains the observation by Clive Butler in paragraph 36 of the Butler affidavit that the `valve caps are still missing'. On my last day at Nauru House, 16 January 1998, all four chillers in the building were working satisfactorily."[657]
"Therefore, the boiler could not have been correctly returned and recommissioned back into service and it's a critical function that Command technicians should have handed that boiler back to the building and certified the fact that it was in safe operating condition, which is a requirement of all boiler inspections."[684]
"As part of a proper inspection it would be necessary to remove the boiler's safety valve and remove and replace the seals. There is no disturbance of the paint work on the nuts holding the valve in place. Had the nuts been removed, the paint would have been scratched. In addition, I found a large amount of residue in the back chamber of the boiler when I opened it. In my experience, the amount of residue which I found would take approximately 2 years to build up."[689]
"There was some remedial repairs after the boilers had been serviced. It required some rebalancing. In other words - in the technician's terms there he's put `set up the water system for both boilers', so when the taps were turned on, Your Honour, there was no imbalance of water, you didn't get air bubbles coming out ... What this particular invoice[711] is for...is for the balancing of the water to both boilers after they had been serviced. Obviously valves are turned off and they were resetting up the hot water system because both had been serviced."[712]
"Purchase of heating hot valves & repair to heating hot water boiler pipework pumps & valves as discussed with Paul Bacon".
The annual for this boiler was planned to be carried out before winter."[718]
"The main boilers for the building both need a major service in accordance with the attached maintenance schedule. Although we are told that No.1 boiler has recently been serviced, we can report that the burner leaks excessive air and the combustion appears very poor."[732]
The report does not specifically mention boiler No.2.
"We recommend that access to the roof and cooling tower area should be restricted. Cooling towers, as a matter of urgency, should be drained, cleaned and disinfected as soon as possible without undue interruption to the services of the building. Our understanding is that the detection of legionella in a condenser water system is not notifiable to the Health Department."
(i) Australian/New Zealand Standard 3666.2: 1995
"Cooling water systems in use shall be inspected at least monthly, as part of the regular routine maintenance program, and be cleaned, when necessary. Cleaning shall include the physical cleaning of the cooling tower and disinfection and draining of the entire cooling water system. Unless approved otherwise by the regulatory authority, the cleaning interval shall not exceed six months."[752]
"The water treatment system shall be inspected monthly and maintained in accordance with the supplier's instructions. Water quality in cooling water systems shall comply with all relevant requirements of the regulatory authority."
"the frequency of cleaning should be three monthly. Less frequent cleaning intervals, but not exceeding six months, may be acceptable based on relevant performance data. Under some conditions, more frequent cleaning may be required. ... The relevant performance data determining the frequency of cleaning shall be based on total bacteria count (TBC) and tower cleanliness."[767]
"The biocide and corrosion inhibitor chemical dosing equipment, known as the TRASAR unit, is a system for automatically dosing the cooling tower with biocide and corrosion inhibitor chemicals. The system was installed at Nauru House but had never been made operational because of Occupational Health and Safety restrictions on the manual lifting of the load of chemicals required for the system, there being no mechanical means of getting the chemicals from the top floor of the building to the roof where the system was housed. Instead, there was a timer controlled biocide dosing system in place which was continuously operating and which was providing the necessary chemicals to the system. This system complied with the applicable Health Department of Victoria guidelines."[784]
"Contrary to the statement of Ian Gardner both Command and Nalco statements assert that metered automatic chemical dosage (as required by AS 3666:1995 [sic] and Victorian DHS) was applied to the systems. This is consistent with the observed microbial control and the levels of chemicals reported by Antonino Ventura of Hydro-Chem."[785] (See paragraphs [ 599] below).
"I had a conversation with Michael Patrick [Mr Butler's temporary replacement] in late December 1997, in which he said there was an oil seal problem with the gear box on the number two cooling tower, and that we needed to take a look at it and rectify it. The work on the gear box was to be undertaken by Glenn Stares, who had been appointed to replace Clive Butler and was responsible for ongoing preventative maintenance, in later January or early February 1998."
"In early December 1997, I rang Steve Teleki of Tower Thermal, a specialist cooling tower contractor, and asked him to come and inspect the condition of the cooling towers and provide a costing for rectification of the following matters: * Cooling tower splash box repair. * Delamination of cooling tower basin fibreglass coating. * Corrosion of pipe work, fan motor and pipe work supports. * Dislodged timber slats in cooling tower fill. * Delamination of fibreglass fan cowls and protective coatings. * No inspection access panel in the president's cooling tower. * Pipe supports on the President's cooling tower corroded and unfastened. Steve Teleki inspected the cooling towers a few days later. He had not provided me with the costings when Command was shut out of the building on 19 January 1998." [795]
"Cooling tower number three, which served the President's suite, was originally designed and installed in about the mid 1970's, and at that time was not required to have an access panel. The repair work to cooling tower number three, for which Steve Teleki was doing a costing, included removal of moss, repair of the timber slats and installation of an access door. It was never intended that the biocide program would control or treat moss growing on external surfaces of the cooling tower basin."[797]
(b) Provide other services as detailed:
* Legionella Tests to AS 3666 or better on:
- Cooling Towers
- Domestic Hot Water
- Fountain
...
* Water Treatment for all mechanical (thermal) water systems."[800]
(a) Testing and cleaning by Nalco Australia Pty Ltd
There was a build up noticed in the basin that was also being addressed by Nalco. A change in the biocide program from a non-oxidiser to an oxidising program had been approved by Command and was going to be implemented after the 1st quarter tower clean of 1998."[816]
"Purely for that the summer periods you get a lot more dust in it, because of the high winds, the high temperatures and that sludge ... you can't shut the whole tower system down, you've got to take one out of the combined system, so you get a cross contamination. As soon as you've cleaned one, the other half is still - [has] dirt in it, so when you start it up it goes off again, so we were trying to get it cleaned a little quicker."[818]
"The recommended frequency of cleaning is 3-6 monthly (Victorian Guidelines) or at least 6 monthly AS/NZS 3666:1995. Command performed quarterly cleans in compliance with both Vic DHS and AS/NZS 3666:1995. The systems were due to be cleaned on 24/01/98, at this time physical repairs should also have been performed. It is inevitable that between cleans some build up of deposits and physical deterioration will occur. The statement of Peter Chelberg suggests that it was the intention of Command to perform the required maintenance on 24/01/98 as a result of defects noted on a monthly inspection in December 1997. Due to the contrasting nature of the submitted reports I am not able to determine whether the extent of the build up was sufficient to warrant cleaning at shorter intervals. In the absence of more detailed reports I could not conclusively state whether at 19/01/98 the systems complied with the Victorian DHS guidelines and AS/NZS 3666:1995 or not."[821 ]
"Legionnaire's disease outbreaks almost exclusively occur in autumn and so there is a published opinion which suggests that the end of the summer months and early autumn are when the Legionella populations in cooling towers peak and...we will find that most of the outbreaks that have occurred in Australia for instance seem to be in April, May and they tend to centre around long weekends, when cooling towers have been switched off for the weekend and then turned back on and cause a disturbance of an established population that has grown up during the summer months."[825]
(b) What was found after Command left the building ?
"The presence of substantial biofilm in a cooling system will make a significant contribution to the TBC ("total bacteria count") test result. The presence of biofilm in cooling systems has been identified as major reservoir of Legionella in cooling water systems."[843]
"Legionella longbeachae is a member of the Legionella family with some quite unique characteristics. Laboratory studies have shown that this species does not multiply in the aquatic environment and that the established environmental reservoirs are potting mixes and composted materials."[860]
"[Legionella longbeachae] is one on its own in the Legionella family. Generally the Legionella family are aquatic bacteria - aquatic micro-organisms associated with water systems. The exception in the whole family so far is Legionella longbeachae which isn't associated with water systems. Work in Adelaide ten years ago showed that it doesn't survive in water and it actually will die off quite quickly in water systems but it does reside in potting mixes and composts and composting material."[861]
A draft of this letter was first sent to Mr Hughes for his approval. Mr Gardner's explanation for taking this step was as follows:
"The issue of Legionella in cooling towers and particularly in Nauru House which houses a number of government tenants is particularly sensitive and the issue there really was how they were going to deal with and inform the tenants that in fact they had Legionella - had a positive test of Legionella in the cooling tower, so their reason for the draft was really to assist in dealing with those sensitivities."[875]
"This situation is clearly unacceptable. However, if strict monthly inspection and testing with cleaning as required and chemical dosing were carried out and the routine was monitored then this problem may be tolerated."[877]
"This situation is clearly unacceptable. If [Command] had carried out a strict monthly inspection and testing with cleaning as required and chemical dosing and the routine was monitored then this problem would not have occurred. In our Essential Services Audit dated August '97 we highlighted that with respect to the air conditioning system that [Command] had inadequate records and that the cleaning frequencies were inadequate."[878]
(a) Servicing the level 52 air handlers (28 January 1997) and repairing air conditioning the following day;[914]
(b) Inspecting and repairing level 52 air dampers and adjusting air dampers and induction units in new tenancies in May 1997;[915]
(c) Inspecting air conditioning plant and equipment (3 July 1997);[916]
(d) "Lub, fans and motors L2 - Level 16" (19 July 1997);[917]
(e) "Fan bearings insp. & lub. Refit belts L/16 fan" (26 August 1997);[918]
(f) Cleaning one of the fan rooms (11 September 1997)[919] - the diary entry for that day reads: "Clean fan room - contractor's rubbis h. Check plant L5 - 39 - 16";[920]
(g) "Clean[ed] L.Rise air coils & dampers, clean[ed] fan chambers... wash[ed] L.Rise air dampers" (13 September 1997)[921] - the diary for that day states: "Wash clean west fan coils and dampers. Clean east primary fan ch. floor and bearings Bolts";[922]
(h) Level 39 fan lube and inspection (17 September 1997);[923]
(i) Adjusting belts and servicing level 52 fan (19 September 1997);[924]
(j) Servicing the carpark fans (19 September, 4 and 25 October 1997)[925] - diary for 19 September states: "Adjust belts, grease bearings carpark supply air fan";[926]
(k) Checking level 39 "fans mounts and belts etc." (30 October 1997);[927]
(l) "Service L5 AHU. Air filters changed" (3 November 1997) [928] - diary reads: "Service L5 west" and "Service L6 east. Change filter on control air, grease bearings, tighten belts inspec.";[929]
(m) "Aircon. Service L16 fans" (5 November 1997)[930] - diary entry reads: "Lubricate east primary fan bearings. Bearings or fan require inspection";[931] and
(n) "Inspect, repair aircon systems L44 and L43. Duct cleaning" (8 November 1997).[932]
"Whilst this issue does not pose an immediate concern in relation to maintaining effective air quality throughout the building, it should be noted by building management and an annual inspection of the coils performed in an effort to gain an appreciation of the rate of deterioration as a means of determining an appropriate time frame for the eventual replacement of these units."[952]
"Emergency Lighting System [Command] is responsible for all emergency lighting equipment on site including light fittings, exit signs, battery banks, charging systems, switchboards, automatic controls, electrical reticulation and the like but excluding any additional emergency lights and exits signs installed within tenancies by tenants (over and above the standard equipment)."[965]
"Command also attended to any exit or emergency lighting faults which came to its attention or were notified to it. Marino Zufich walked all common areas, including stairwells, weekly to ensure that all common area lighting was operating, and to ensure that any faulty lights, including exit and emergency lights, were replaced or rectified. The nature of light fittings is such that lamps, tubes and starters can and do fail repeatedly and without warning, and no amount of patrolling will prevent this occurring. The mere fact that a light has been observed not to have been functioning on more than one occasion, or a globe not to be working, does not mean, as Mr Gardner seems to have assumed, that the light has not in the interim been maintained or the globe replaced."[971]
"Command is responsible for all fire-systems on site plus additional systems added to the building after any work programme executed by Command."[979]
"Command warrants to the [Trust] that all materials, workmanship and methods used by Command will: ... (c) comply with all relevant legislation and Australian standards (unless this agreement provides otherwise).
(a) he learned of Meinhardt's concern about this issue soon after he commenced at Nauru House in March 1997;
(b) his investigations indicated that before his commencement at Nauru House, and in response to a memorandum dated 18 February 1997 from Meinhardt expressing concern about sprinkler fittings, Command engaged a contractor, Flame, to replace any faulty pressure gauges identified by Meinhardt. Two only were thus replaced;
(c) he arranged for a report to be prepared by a fire services engineer, Mr Daryl Knight;
(d) Mr Knight expressed the opinion that, in the absence of a determination from a building referee under the Building Regulations requiring the upgrade of the system, the system "must be maintained at the required level of performance as initially designed";[982]
(e) no such determination having been made, the applicable design standard was therefore Australian Standard CA16, 1972;
(f) Mr Knight further stated that:
"If the sprinkler heads are connected to a continuously water charged pipe network, designed to CA16 with adequate pumps, the existing system does, without doubt, fulfil its purpose";
"It is commonplace to find high rise buildings around Sydney, Brisbane, Adelaide and Melbourne which have been designed to CA16 or the early years version of AS2118, to have similar static pressures as observed on the existing Nauru House system";
(g) if modifications are made to the system to meet the pressure levels set out in AS 2118, then this could pose "major safety risk" and the system should be evaluated by a qualified fire engineer and the static pressures reduced;[983]
(h) a comparison between the test figures for Nauru House and for a building of similar age and height, Collins Place, shows comparable figures for the two;
(i) repeated requests by Mr Chelberg to Gardner + Lang and to Meinhardt for the specifications and calculations for the proposed sprinkler depressurisation works were refused;
(j) Mr Chelberg wrote to Gardner + Lang on 8 April 1997 indicating Command was prepared to perform the depressurisation works "provided it was paid for the works on a capital expenditure basis under the CERA";[984]
(k) during the works, which were carried out in May 1997, "the sprinkler pressure on level 39 dropped to 1,200 kPa, triggering the shut down of the air conditioning system and causing a fire alarm activation";[985] and
(l) the Trust deducted $35,988.00 from Command's June 1997 monthly fee "on account of the sprinkler works".
"In a discussion some weeks later concerning the diesel generator, among other things, Ian Gardner and I discussed the idea of the circuit breakers being serviced during the generator test. This was an appropriate time to do the testing because in order to do the generator testing and circuit breaker testing servicing, it was necessary to turn off the mains power to the building. Ian Gardner thought that the idea of combining the testing of the generator and servicing of the circuit breakers was a good idea."[991]
"I understand his concerns and I agree with them but as I said, Your Honour, I was one of seven and no one was prepared to agree to turn it off, there was some tenants in the building who refused to have any power turned off to their tenancies and with that in mind I wasn't going to be the one that stood there and said yes, let's turn it off if we couldn't get it back on again. It [sic] was purely one of nine I think."[995 ]
(8) Maintenance Records and Preventative Maintenance
The system, being fully integrated, would include Gardner + Lang information.[997] It was intended that it be installed in September 1997. Problems associated with the software, however, resulted in its receipt being delayed until the latter half of November 1997. When it arrived, Mr Chelberg began to "populate" the data base with plant records and maintenance data sheets. By mid January 1998 the templates for work orders had been installed; but the flag dates were yet to be programmed.[998] It was intended that the system would be fully operational by the end of that month.[999]
(d) Cooling Tower Maintenance Schedules/ Records
"2.6.1 Operating and maintenance manuals Operating and maintenance manuals...shall include at least the following: ... (e) Particulars of the maintenance management program. 2.6.2 Maintenance records Up to date maintenance records and log books shall be provided for all plant, equipment and systems which are the subject of this Standard. Maintenance records shall contain at least the following information: (a) Date, item of plant, equipment or system and nature of service performed. (b) Details of defects found and rectification procedure undertaken. (c) The name of the person or company performing the service. 2.6.3 Availability of manuals and records Operating and maintenance manuals and maintenance records shall be available at the site for inspection by authorized person [sic] upon request. For the purpose of maintenance management the maintenance records shall be retained for a minimum period of two years."[1008]
"The tubes and starters in a majority of the lights need to be replaced due to their age and hours of usage. We would recommend that a central system of emergency and exit lights be installed. This system would enable you to monitor the tubes and power available at each fitting via one central computer point."[1030]
"(b) [Command] agrees that all works shall be installed in a good and workmanlike manner, be suitable for their intended purposes and of an agreed quality."[1036]
"The dollar amounts stated in the table are merely estimates and do not describe the scope of the obligations of Command...; Command...is not obliged to spend the amounts set out in the table, nor is it entitled to recover costs in excess of the amounts set out in the table."[1038]
"Some tenants, including Government Departments may wish to install High Security Alarm Systems within their tenancies. The system recommended above should be considered as a `Commercial' grade system only, and could monitor a high security system on an `information only' basis. Such High Security systems should be fully monitored by an appropriately equipped commercial monitoring station. We recommend the installation of the Security/Access Control System described above, at an estimated cost of $450,000.00. This system does not include tenants special sub-systems ... and High Security systems."[1043] (emphasis added)
These remarks suggest that Bassett contemplated a relatively straightforward security system. The true extent of the Bassett findings and recommendations was not, however, the subject of elucidation: as I have noted elsewhere in this judgment, no one was called from Bassett.
"The base system and upgrades utilise a Compaq 386 PC with an unlimited capacity of readers and security points. The system would be configured to suit the number of points required plus a reasonable spare capacity. The alternative offer is based on utilising Compaq 486 PC's for the Operator and Engineering Terminals with unlimited capacity of readers and security panels. This enhanced arrangement is most appropriate for the upgraded systems."[1051]
What does Mr Digby mean by this? What is encompassed by the term "upgraded systems"? And how do the concepts of "unlimited capacity" and "a reasonable spare capacity" fit together?
"The Control Instrumentation enhanced system is not yet fully developed (this work is currently in progress) however existing proven technology is being used."[1052]
He suggested that, in the medium to long term, an upgraded system 2 should be used. At the same time, he recommended, as an initial step, acceptance of the Control Instrumentation Enhanced System 1, noting that "this system could be readily enhanced to an upgraded 2 type system once tenants have identified their requirements and are ready to proceed with installing the additional security equipment."[1053] ]
"Q: Going back to paragraph 35(b), Mr Williams asked you whether a high level interface had been included in the Bassett recommendations. I didn't understand your answer. Did Bassett recommend a high level interface or not ? A: No, they recommended low. Q: They recommended low ? A: That's correct. Q: And a low interface was installed ? A: That is correct. Q: What then was the problem with the fact that the system could not be upgraded to include a high level interface ? A: Simply because it was on offer at that same time. It was a low or a high, and then we've come to asking for a high, we can't get one. Q: I can understand that might be a problem for you but could you blame Command for that ? A: In all honesty I couldn't."[1063]
"Subcontractors [Command] may subcontract some of the Services but all subcontractors must be suitably qualified and able to perform the services in a good and workmanlike manner. This will not affect [Command's] responsibility or liability under this Agreement."[1064]
The "Services" referred to are those set out in Schedule B to the maintenance agreement, which includes item A1.1(l):
"Security System [Command] is responsible for operation and maintenance of all electronic security Equipment on Site plus additional electronic security Equipment added to the building under any capital work programme executed by [Command] but not any tenant's electronic security Equipment."[1065]
"82 (1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. (2) An action under sub-section (1) may be commenced at any time within 3 years after the date on which the cause of action accrued."
Section 37 of the Fair Trading Act 1985 was in similar terms. But it, along with the remainder of that Act, was repealed by the Fair Trading Act 1999. By s. 159(3) of the new Act, the limitation period is now 6 years. Obviously, therefore, Command is in a stronger position under the Federal legislation. Even so, the position is not clear-cut. Although more than three years had elapsed between the issue of the defence and counterclaim on 23 March 1998 and the dates on which the impugned letters (dated respectively, it will be remembered, 28 April 1993 and 28 July that year) were written, the cause of action accrued not when the contravening conduct was said to occur, but when the actual loss or damage was sustained: Wardley Australia Ltd v The State of Western Australia.[1082] The evidence from the Trust about loss and damage is inadequate: there is no evidence of payment by it or when such payment may have been made. I consider the issue at greater length in paragraph [785] below. The fact remains, however, that (a) I am not in a position to make any finding about whether the Trust is statute-barred from pursuing this cause of action and (b) the Trust has failed to adduce evidence about an essential component of it. I turn instead to the two letters which form such an important part of the dispute over the security system.
"The Nauru House building will be completely fitted out with a state of the Art Computerised Security and Monitoring System able to cope with all the building security and individual Tenants requirements to a very high degree of reliability. The security system can be engineered to suit the most stringent Tenant's demands; and is designed to ensure that the equipment installed will meet the future demands of the building's Tenants well into the next century. The installation of the new security system is due to commence during late May 1993, and depending upon the individual Tenant's requirements, will be completed during the month of August 1993." (italics as in original)[1083]
"Furthermore, Command Environment Engineers will ensure that all equipment for installation meets the standards and codes that act upon the building and that the standard of workmanship, with each installation, meets the highest possible standards."[1084]
"The Nauru House building will be completely fitted out with a state of the Art Computerised Security and Monitoring System, able to cope with all the building security and individual Tenants requirements, to a very high degree of reliability. The security system can be adopted to suit the most stringent Tenants' demands. It is designed to ensure that the equipment installed, will meet the future demands of the building's Tenants well into next century. The installation of the new security system is due to commence during late August 1993, and depending upon the individual Tenant's requirements, is estimated to be completed during the month of December 1993."
Save for the change to the dates, these items (as I have noted above) reproduce the statements made by Mr Butler in his letter dated 28 April 1993. Mr Faity was not called to give evidence about the basis for the statements confirmed by him in his letter.
"The proposal, as set forth in the tender document prepared by Control Instrumentation, provides for the Base Building System to cover the immediate and foreseeable building systems." (italics as in original)[1086]
He then referred to "additional options" requested for "the Wormald Security Office and the Managing Agents Building Manager's Office". This may be a reference to an engineering workstation and management terminals in addition to the operator's workstation to enable parallel monitoring and management review[1087]. It would appear that there was some dispute about whether the "additional options" fell under the CERA and should be paid for by Command.
"In order to obtain the most suitable company the Management Office agrees with Command commissioning Bassetts Consulting to review and comment on the four (4) proposals noted above. The choice of Mr Ken Digby to prepare the 1993 Bassetts Report was welcomed by this office. We are aware that Mr Digby consulted on the security system at the new Parliament House in Canberra."[1089]
"The Management Office agrees with the recommendation that Control Instrumentation should install the new [security access control system] at Nauru House. As was discussed with Mr Gerard Faity and yourself recently the preferred option for both the Owner and Command is the System 2 with management workstation specification (ref:2.5). The details relating to the implementation of this project and the terms and conditions of the proposal acceptance will be forwarded shortly. Works in accordance with the Control Instrumentation submission are to commence as soon as possible."[1090]
"Q: I suggest to you that that is an express instruction relying upon the recommendation of Mr Digby that Command should go ahead and install the Control Instrumentation system ? A: I concurred with Command's recommendation. Q: It's a bit more that that, isn't it ? What you did was provide an express instruction to Command to go ahead and accept the Control Instrumentation submission - commence those works as soon as possible ? A: As I understood, the contract provided for me to give a direction in relation to capital works of this nature. I was giving a direction in accordance with the Command contract."[1091]
Nor has the Trust pleaded such oral terms. The CI documentation upon which Gardner + Lang directed Command to install the system did not mention such a term.
"This includes for controller cabinets and interface equipment to allow for tenants to be connected to the Security system without further major building installation works. The only requirement would be for the fitting of the security devices and alarms within the tenancy."[1096]
Once again, it is difficult for me to know what this encompasses. Evidence was given that after the system was installed, two tenants, the accountants Mann Judd and the solicitors Home Wilkinson & Lowry, were able to "hook into" the system. This meant that after accessing the relevant floor staff could use the same card to gain entry to the tenancy, rather than use a key. The complaint was that more tenants could not be given similar access.[1097]
(f) Did the system installed conform with that agreed ?
"Q: ... the question was that [ie. the system recommended by Mr Digby] was the system that was not only contracted to be installed but installed by Control Instrumentation ? A: Yes. Q: When you say that was the system that was contracted to be installed, that was the system that was both contracted and installed ? A: As I understand."[1108]
"[a]lso key pads connected, each time the key pad was introduced it was going to degrade the system yet it was in the spec's, that's the type of thing that I'm talking about."[1111]
"At no time during or after the installation of the security system did David McEachran or Gardner + Lang advise me of any misgivings they had with the system or any serious or generic failures or problems with the system. I was therefore surprised when, at the 12 September 1997 meeting, it was suggested to Bruce Casey that there were problems with the security system. This is to be contrasted with the constant stream of complaints and criticisms that Command had received from Gardner + Lang over many months in relation to the fire sprinkler system."[1127]
"... if a man is entitled to one of two inconsistent rights it is fitting that when with full knowledge he has done an unequivocal act showing that he has chosen the one he cannot pursue the other, which after the first choice is by reason of the inconsistency no longer his to choose."[1136]
"My understanding at this time is, that it is acceptable to Command for AHW and myself to run with this upgrade (supervised by the Building Management) so long as there is no cost for the upgrade works to Command, and that all original documentation is handed over to yourself and that you are kept informed throughout the entire project."[1138]
"If required by the Tenant the Landlord must permit the Tenant to utilise the Building Security System in order to have its own services monitored, with usual charges applying. In carrying out the above works the Landlord and its contractors must: (a) do so in a proper and workmanlike manner. (b) use first grade quality materials. (c) comply with lawful requirements of all authorities. (d) cause to other occupiers of the building as little disruption and inconvenience as possible. (e) ensure there is minimum inconvenience to the Tenant.
(f) ensure that the works are completed to a program agreed with the Tenant."[1145]
"The Nauru House building will be completely fitted out with a state of the art computerised Security and Monitoring System, able to cope with the building security and individual Tenants requirements, to a very high degree of reliability. The wiring and program software of the new security access system has been designed to accommodate individual tenant's security demands. The contract for the new Security system has been let and installation is due to commence during January 1994. It is estimated to be completed during the month of May 1994."[1146]
"This price was substantially less than what [Control Instrumentation] had offered because as systems improved and there were more on the market, the price of the technology had dropped."[1153]
I can assume that the replacement was more sophisticated and more powerful than its predecessor; yet, only two or three years later, it cost approximately a third of the price. If the Trust insisted in 1993/1994 on a more sophisticated system which could be said to increase the system's capacity by more than 20%, Command may have invoked clause 6(a) of the CERA to increase the fee under the maintenance agreement. This raises the issue of whether the Trust would have paid more at that time than it did later, when technology had advanced and was cheaper; in other words, whether - in the events which happened - the Trust far from being the loser, was the financial beneficiary. However, this point was not argued at trial and I am not in a position to pursue it further.
"Repudiation is not ascertained by an inquiry into the subjective state of mind of the party in default; it is to be found in the conduct, whether verbal or other, of the party in default which conveys to the other party the defaulting party's inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way."[1160]
"The way in which the defendants business was carried on, the trust necessarily imposed by vendors in them as purchasers of their ore to make an honest assay, raised a condition requiring what is sometimes called uberrima fides. If it became known to persons dealing with the defendants that their manager connived at the falsifying of assays their reputation would be gone. They could not keep in their employment a manager who had a reputation of that kind. It would be incompatible with the successful carrying on of their business. In law, I think, that was sufficient ground for dismissal."[1173]
"If a servant, or a managing director, or any person who is authorised to act, and is acting, for another in the matter of any contract, receives, as regards the contract, any sum, whether by way of percentage or otherwise, from the person with whom he is dealing on behalf of his principal, he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to shew that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a temptation not faithfully to perform his duty to his employer...He...is doing a wrongful act, he is misconducting himself as regards his agency, and, in my opinion, that gives his employer, whether a company or an individual, and whether the agent be a servant, or a managing director, power and authority to dismiss him from his employment as a person who by that act is shewn to be incompetent of faithfully discharging his duty to his principal."[1176]
"I think the view that if it is an isolated case it does not amount to such misconduct as would entitle the master to determine the service, is a mistake. It seems to me to be a confusion between the duty of the Judge to draw inferences of fact, and the duty of the Judge to pronounce a decision of law. There may be cases where the breach of confidence and good faith towards the master would not arise from a simple isolated act, but would be founded on the accumulation and repetition of such acts, but those classes of cases are not cases of fraud at all, they are cases of isolated acts which, if they occurred singly, would not, in themselves, amount to a violation of the confidential relation or breach of the faithful service which the servant is bound to render. In that class of cases it is perfectly proper to consider whether on the whole the conduct of the servant has been such as to amount to a breach of confidence, and if it has not, then the master will not be justified in the dismissal. In such cases you might leave to the jury to consider whether there had been such an accumulation, or such a repetition of the acts, as to give a ground for the determination of service; but in cases where the character of the isolated act is such as of itself to be beyond all dispute a violation of the confidential relation, and a breach of faith towards the master, the rights of the master do not depend on the caprice of the jury, or of the tribunal which tries the question. Once the tribunal has found the fact - has found that there is a fraud and breach of faith - then the rights of the master to determine the contract follow as [a] matter of law."[1177]
"Some confusion always arises, as it seems to me, from treating these cases between master and servant as instances of a rescission of the original contract. It is not a rescission of the contract in the sense in which the term ordinarily is used, viz., that you relegate the parties to the original position they were in before the contract was made. That cannot be, because half the contract has been performed. It really is only a rescission in this sense, that an act occurs which determines the relation of master and servant for the future, and you may regard that determination in two ways; it is either a determination in conformity with the rights of the master which arise under the contract itself, there being, as I have said, in every contract of service an implied condition that if faithful service is not rendered the master may elect to determine the contract, and the determination takes place on that implied condition; or you may regard it under the more general law, which is not applicable to contracts of service alone - you may treat it as the wrongful repudiation of the contract by one party, being accepted by the other, and operating as a determination of the contract from that time, that is, from the time the party who is sinned against elects to treat the wrongful act of the other as a breach of the contract, which election on his part emancipates the injured party from continuing it further. It is not a rescission of the contract in the ordinary sense in which the term is used in common law."
"Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provisions aside) that acts of dishonesty or similar conduct destructive of the mutual trust between employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal."[1179]
"The issues which must be determined are to be understood in the context of the law respecting employment relationships. It would be unusual for this to be purely contractual. Statute may impose obligations to observe industrial awards and agreements, and in some instances the relevant terms of the employment relationship may be found in the industrial award which binds the parties at the relevant time. Further, as Mason J pointed out in Hospital Products Ltd v United States Surgical Corporation,[1180] the relationship between employee and employer is one of the accepted fiduciary relationships; their critical feature is that the fiduciary undertakes or agrees to act for or on behalf of, or in the interests of, another person in the exercise of a power or discretion that will affect the interests of that other person in a legal or practical sense."[1181]
"The accepted fiduciary relationships are sometimes referred to as relationships of trust or confidence or confidential relations...viz, trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions `for', `on behalf of', and `in the interests of' signify that the fiduciary acts in a `representative' character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal. It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed...Thus a mere sub-contractor is not a fiduciary. Although his work may be described loosely as work which is to be carried out in the interests of the head contractor, the sub-contractor cannot in any meaningful sense be said to exercise a power or discretion which places the head contractor in a position of vulnerability."
"There is...the notion underlying all the cases of fiduciary obligation that inherent in the nature of the relationship itself is a position of disadvantage or vulnerability on the part of one of the parties which causes him to place reliance upon the other and requires the protection of equity acting upon the conscience of that other".[1183]
"Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made."[1185]
"In my opinion making a false statement through want of care falls far short of, and is a very different thing from, fraud, and the same may be said of a false representation honestly believed though on insufficient grounds."[1186]
"The question whether a term in a contract is a condition or a warranty, ie, an essential or a non-essential promise, depends upon the intention of the parties as appearing in or from the contract. The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor... If the innocent party would not have entered into the contract unless assured of a strict and literal performance of the promise, he may in general treat himself as discharged upon any breach of the promise, however slight. If he contracted in reliance upon a substantial performance of the promise, any substantial breach will ordinarily justify a discharge."[1193]
"The difference between a contract which contains a stipulated day for performance of an essential term and a contract which, expressly or impliedly, requires performance within a reasonable time is important when the question is whether, on failure to perform within the time limited by the contract, the innocent party is entitled to rescind. In the former case, a right to rescind arises at law when the stipulated day passes; in the latter, that right does not necessarily arise when the reasonable time expires but only when repudiation is clearly to be inferred from the circumstances in which the delay occurs. Delay will amount to repudiation if the defaulting party `evinces an intention no longer to be bound by the contract ... or shows that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way'... If the inference to be drawn from the circumstances is that the defaulting party intends to perform an essential promise after some minor delay, repudiation cannot be inferred; but if the inference is that the defaulting party intends so to delay performance that the promisee will be substantially deprived of the benefit of the promise, repudiation can be inferred. The inference is not lightly drawn..."[1200]
"The question whether an inference of repudiation should be drawn merely from continued failure to perform requires an evaluation of the delay from the standpoint of the innocent party. Would a reasonable person in the shoes of the innocent party clearly infer that the other party would not be bound by the contract or would fulfil it only in a manner substantially inconsistent with that party's obligations and in no other way ?"[1202]
"... although the matter is finely balanced, the unjustified delay on the part of [the lessor] between March and 3 September 1986, accompanied by incorrect statements and unfulfilled assurances sustained the inference of repudiation drawn by Connelly J [the trial Judge]. Based on [the lessor's] unwillingness to deliver a registrable lease to [the lessee], it seems to me that [the lessor's] intention was only to perform the contract in a manner substantially inconsistent with its obligations, such as would allow [the lessee] to treat [the lessor] as having repudiated the contract."[1206]
"These audits identify issues of serious concern to the Trust. In particular, we note that the audits show that in a number of areas Command has failed to comply with the requirements set out in the [maintenance agreement] and CERA contracts. For example, we note that in breach of clause 3.2 of the [maintenance agreement] Command has failed to keep maintenance records of a number of essential services in the building as is required under the Building Regulations (Vic) 1994. This exposes the Trust to penalties under the Building Regulations and if the essential services have not been properly maintained the risk of liability if those services fail to perform in an emergency. Due to the serious nature of the deficiencies noted in the audits and in accordance with the agreement reached at the meeting on 25th August 1997, we require you to produce a programme of works necessary to rectify the deficiencies to be reviewed by the Trust at the meeting of 1st September 1997. The programme must set out in detail how you will deal with the deficiencies raised in both audits. Once these programmes are accepted by the Trust, the Trust requires that the issues raised in these audits be dealt within [sic] the case of the Essential Services Audit, within 30 days from acceptance of the programme and, in the case of the general audit within 60 days of the acceptance of that programme. Should: (a) the programme presented at the meeting of 1st September 1997 not be adequate, or; (b) the deficiencies in the audits not be resolved to the satisfaction of the Trust in the time frame noted above or such other times as are agreed to by the Trust, Then the Trust will have no other choice but to look to its remedies under clauses 7.1 of the [maintenance agreement]."[1211]
"...they understood that [the start and end dates for the rectification works] may well change at a latter [sic] date however an initial guide and commitment from Command was required in the first instance."[1215]
I certify that this and the 330 preceding pages are a true copy of the reasons for judgment of Harper J of the Supreme Court of Victoria delivered on 17 July 2003.
[1] Command's Further amended statement of claim filed 25 January 2002, paragraph 3
[2] Witness statement of John Griffiths, paragraph 4 (NT.115 at CB.20468)
[3] Maintenance agreement, schedule A, clause A1 (CM.003 at CB.17934)
[4] Further amended statement of claim, paragraph 48
[7] All the quotations in this and the following paragraph of the judgment are taken from schedule A, clause A1.1 of the maintenance agreement (CM.003 at CB.17934)
[8] Further amended statement of claim, paragraph 4. In this paragraph, Command lists the individual items which, it alleges, together constitute "the total services for the maintenance and operation of the equipment at Nauru House".
[9] Maintenance agreement, schedule A, clause A1.1(h)(CM.003 at CB.17935)
[10] Letter dated 28 February 1992 from Bassett Consulting Engineers to the then managing agent, Geo. M. Hume Pty Ltd (CM.001 at CB.01658)
[11] Introduction to the report, at p.3 (CM.001 at CB.01661)
[12] Report of Bassett Consulting Engineers dated 28 February 1992, s.6.3.1 (CM.001 at CB.01692)
[15] NT.100.001 (first page only); CM.088 (complete document)
[17] Maintenance agreement, clause 3.1 (CM.003 at CB.17917)
[18] Maintenance agreement, clause 3.2(c) (CM.003 at CB.17918)
[19] Maintenance agreement, clause 4 and schedule A (CM.003 at CB.17919)
[20] Maintenance agreement, clause 6.1(CM.003 at CB.17924)
[21] Maintenance agreement, clause 6.2(CM.003 at CB.17924)
[22] Maintenance agreement, clause 7.2(h) (CM.003 at CB.17927)
[25] CERA, appendix (CM.004 at CB.02348)
[26] Witness statement of Neumann Ashkar, paragraph 4 (NT.116 at CB.19355)
[27] CERA, clause 5 (CM.004 at CB.02343)
[28] CERA, clause 6 (CM.004 at CB.02343). It is to be noted that this clause is headed "Replacement works".
[30] CERA, clause 5 (CM.004 at CB.02343)
[31] CERA, clause 4 and maintenance agreement, schedule A, clause A4(b)
[32] Maintenance agreement, schedule A, clause A1 (CM.003 at CB.17934)
[33] CERA, clauses 7(b) and 13 (CM.004 at CB.02344 and CB.02346)
[34] CERA, clause 7(a) (CM.004 at CB.02344)
[36] CERA, clause 9(a)(i)B (CM.004 at CB.02344)
[37] Ibid, clause 9(c) (CM.004 at CB.02345)
[38] Ibid, clause 9(b) (CM.004 at CB.02345)
[40] Ibid, clause 3(b) (CM.004 at CB.02343)
[41] Ibid, appendix (CM.004 at CB.02348)
[42] See, for example, clauses 1.3 and 3.1 of the maintenance agreement (CM.003 at CB.17916 and CB.17917)
[43] Further amended statement of claim paragraph 26
[45] Amended defence and counterclaim, paragraphs 31G and 31J
[47] Amended defence and counterclaim, paragraph 31A(d)
[51] Amended defence and counterclaim, paragraph 31C(a)
[55] Amended defence and counterclaim, clause 31E(a)
[56] A very considerable difficulty. The CERA does not require Command to decline finance unless it can get it free of interest or like cost.
[57] CERA, clause 7(c) (CM.004 at CB.02344)
[58] Amended defence and counterclaim, paragraph 31E(c)
[59] Ibid, particulars under paragraph 31F(a)
[60] CERA, clause 9(a) (CM.004 at CB.02344)
[62] Ibid, clause 9(c) (CM.004 at CB.02345)
[63] I will, of course, consider the Trusts' claim against Sogelease; but in a separate judgment.
[64] Amended defence and counterclaim, paragraph 31F(h)- (i)
[65] Further amended reply and defence to counterclaim, paragraph 18(j)-(s)
[67] Amended defence and counterclaim, paragraph 31D(k)
[68] Further amended reply and defence to counterclaim, paragraph 16(b)
[75] Further amended statement of claim, paragraph 3
[76] Building Services Audit Initial Report - June 1994 (NT.099.005 at CB.03942); T.3458
[77] Building Services Audit (1995) (NT.099.006)
[81] Building Services Audit (1995) (NT.099.006 at CB.05827)
[84] Building Services Audit (1995) (NT.099.006 at CB.05829)
[96] Meinhardt Building Services General Audit report dated 12 August 1997 (CM.030 at CB.12535)
[99] Maintenance agreement, clause A4(a) (CM.003 at CB.17939)
[100] Ibid, clause A4(b) (CM.003 at CB.17939)
[105] Command's closing submissions, para.1.4(b)
[106] See table of works Category 1 NT.021 at CB.13119_A to CB.13119_B. The information in the paragraphs in this section is derived from this document.
[108] T.372; items 1 and 2 in Schedule A to the Trust's amended defence and counterclaim filed 5 February 2002; paragraphs 1 to 10 inclusive of Schedule 1: defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01018 at CB.01045-7); paragraphs 1 to 4 inclusive and 131 of Schedule 1 (Part B): defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01081 at CB.01082-3, CB.01119).
[109] T.373; item 5 in Schedule A to the Trust's amended defence and counterclaim filed 5 February 2002; paragraphs 32 to 36 inclusive of Schedule 1: defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01018 at CB.01054); paragraphs 30, 31 and 134 of Schedule 1 (Part B): defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01081 at CB.01087-8, CB.01121-2).
[110] T.373-4; item 10 in Schedule A to the Trust's amended defence and counterclaim filed 5 February 2002; paragraphs 76 to 80 inclusive of Schedule 1: defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01018 at CB.01074); paragraph 139 of Schedule 1 (Part B): defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01081 at CB.01126-7).
[111] T.373-4; paragraphs 108 to 113 inclusive of Schedule 1 (Part B): defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01081 at CB.01112-4).
[112] T.374; paragraphs 122 to 125 inclusive of Schedule 1 (Part B): defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01081 at CB.01116-7).
[113] T.374; paragraph 148 of Schedule 1 (Part B): defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01081 at CB.01134). This had been pleaded in paragraph 31C(c)(vi) of the Trust's amended defence and counterclaim filed 5 February 2002.
[114] Paragraph 141 of Schedule 1 (Part B): defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01081 at CB.01127). This is item 12 of Schedule A to the Trust's amended defence and counterclaim filed 5 February 2002.
[115] Witness statement of Ian Gardner, paragraph 60 (NT.099)
[117] For example, witness statement of Ian Gardner, paragraph 47 (NT.099 at CB.19405)
119] T.1149. See generally paragraph [17] in relation to the Barber Colman system.
[123] T.2423; affidavit of Clive Grenville Butler sworn 12 February 1998, paragraph 12 (NT.14B at CB.00658)
[126] See paragraph [[] and following
[129] Witness statement of Campbell Watt, paragraph 12 (NT.125 at CB.19481)
[132] Evidence of Campbell Watt about four extra dampers at T.3378
[133] CM.050, paragraph 48, at CB.19292
[137] In the Meinhardt Essential Services Report August 1997 (CM.031) at CB.12622 the author, when discussing fire-isolated lift shafts, says that they "can act like chimneys within buildings" so that "keeping them intact can prevent the spread of fire and smoke from floor to floor". A similar comment appears at CB.12659 in relation to fire resisting shafts.
[144] Paragraph 31C(b) at CB.01081. I note that the amended pleading filed on 5 February 2002 contained, under the heading "particulars" under paragraph 31B a reference to the effect that the defendant is presently compiling details of the particulars of this allegation and that these would be supplied "prior to trial". In fact, the particulars had been filed two years earlier - on 1 December 1999.
[145] Schedule 1 (Part B): Defendant's Particulars under Paragraph 31C of Defence and Counterclaim, paragraphs 6 and 7, CB.01081 at CB.01083.
[146] The evidence of Mr Watts quoted in paragraph [[] below is that Nauru House does not have stair pressurisation fans. Mr Chelberg gave the same evidence at T.589, where he also noted that Ordinance 70 Part 59 relates to NSW. Apart from the reference above, AS 1668.1 was not referred to in evidence or elsewhere in this case. Accordingly, I do not propose to consider it further.
147] Clauses 2.3(c) and A3(b) of the maintenance agreement (CM.003 at CB.17917 and CB.17938)
[160] CM.050.092 (ASIMUT PPM data sheets referred to in witness statement of Peter Chelberg, paragraph 168 (CM.050 at CB.19320)); see also paragraphs 162, 166-169 in relation to ASIMUT record keeping.
[164] See paragraph [[] and following
[168] NT.043; see paragraphs [[] and [] below
169] CM.050.047; same document at NT.100.006 at CB.13263
[175] Words in italics were handwritten. Strike through as per original document.
[177] The Trust's final submission, paragraph 110.
[178] CM.050.047; same document at NT.100.006 at CB.13263
[179] This document is to be found at NT.021 at CB.13119_F; NT.100.006 at CB.13263; and CM.050.047 at CB.12955
[180] Witness statement of Peter Chelberg, paragraph 52 (CM.050 at CB.19293)
[181] See paragraphs [[] and following
182] NT.100.005. The minutes of meeting note an assertion by Command that it was not responsible under the contractual arrangements for fire resisting shafts, fire resisting structures or penetrations of fire rated construction (at CB.18730). It was noted in subsequent Command documents (eg. at CB.13119 at CB.13119A) that Command had contracted to maintain equipment and not the building itself.
[186] Witness statement of Jeffrey Duck, paragraph 21 (NT.100 at CB.19388); his copy of work schedule is NT.100.006 at CB.13263; it also appears again at CM.050.047 at CB.12955
[190] CM.032 at CB.13149 and at CB.13152
[202] It is also interesting to note that in relation to fire hydrants the Priority Works Schedule says: "Command to establish hydrant register". No similar notation was made in respect of fire dampers.
[235] The Trust's final submission, paragraph 194.
[237] Command's final submission in reply, paragraphs 18 and 52.
[239] Witness statement of Peter Chelberg, paragraph 49 (CM.050 at CB.19292); this evidence was repeated by Mr Chelberg in his viva voce evidence in chief at T.552
[247] Affidavit of Clive Butler sworn 31 January 2002, paragraph 14 (NT.014A at CB.19808)
[249] Affidavit of Clive Butler sworn 31 January 2002, paragraph 8 (NT.014A at CB.19807)
[250] Ibid, paragraph 21, at CB.19810; affidavit of Clive Butler sworn 12 February 1998, paragraph 18 (NT.014B at CB.00660)
[253] Affidavit of Clive Butler, paragraph 13 (NT.014B at CB.00659)
[254] Ibid (NT.014B at CB.00658 to CB.00661)
[255] Affidavit of Clive Butler sworn 31 January 2002, paragraph 7 (NT.014A at CB.19807)
[258] CM.050 at CB.19294, paragraph 56; T.576.
[259] CM.037 at CB.18920 to CB.18922; T.2420
[260] Affidavit of Clive Grenville Butler sworn 12 February 1998, paragraph 16 (NT.014B at CB.00659); T.536.
[271] CM.050.043 (also NT.105) and CM.050.044. Timesheets for week ending 31 August 1997 (CM.050.028) and week ending 7 September 1997 (NT.035) relate to repairs of air dampers (T.780-1).
[280] NT.14A, paragraph 8 at CB.19807 ?
[284] Witness statement of Ian Gardner, paragraph 59 (NT.099 at CB.19408)
[287] CM.085 at CB.18275. Note that the coloured photographs were tendered separately because the copies forming part of NT.051 were of poor quality.
[304] Witness statement of Campbell Watt, paragraph 9 (NT.125 at CB.19481)
[306] Witness statement of Campbell Watt (NT.125)
[309] Witness statement of Campbell Watt, paragraphs 16(a) (NT.125 at CB.19482) and 17 (at CB.19483); checklist (NT.125.001); T.3371
[310] Ibid, paragraph 16(b) (at CB.19482); checklist (NT.125.002); T.3373
[311] Ibid, paragraph 16(b) (at CB.19482); checklist (NT.036)
[312] Ibid, paragraph 16(c) (at CB.19482); checklist (NT.125.003)
[313] Ibid, paragraph 16(d) (at CB.19482); checklists (NT.125.004 and NT.125.005)
[314] Ibid, paragraph 16(d) (at CB.19482); checklist (NT.125.006)
[315] Ibid, paragraph 16(e) (at CB.19483); checklist (NT.125.007); T.3375
[316] Ibid, paragraph 16(f) (at CB.19483); checklist (NT.125.008)
[317] Ibid, paragraph 16(g) (at CB.19483); checklists (NT.125.009, NT.101, NT.125.010, NT.125.011, NT.125.012, NT.125.013, NT.125.014, NT.125.015 (poor access), NT.125.016, NT.125.017 and NT.125.018)
[318] Paragraph 13(c) of witness statement of Adrian Brown (NT.127 at CB.19370)
[339] (1880) 5 App Cas 685 at 697
[342] Plaintiff's Further Amended Reply and Defence to Counterclaim filed 19 March 2002, CB.20244 at CB.20254, paragraph 15.
[343] Schedule 1: Defendant's particulars under paragraph 31C of the defence and counterclaim filed 15 November 1999, paragraphs 11 to 25 (CB.01018 at CB.01044)
[344] Ibid, paragraphs 23 and 24 (CB.01018 at CB.01050); the Register referred to is CM.041
[345] Ibid at paragraph 24 (CB.01018 at CB.01050)
[347] Schedule 1: Defendant's particulars under paragraph 31C of the defence and counterclaim filed 15 November 1999, at paragraph 21 (CB.01018 at CB.01049)
[348] Paragraphs 11 to 25 of Schedule 1 (Part A) of the Trust's particulars under paragraph 31C of its defence and counterclaim filed 12 November 1999.
[349] Witness statement of Geoffrey Rudman Hughes, paragraph 52 (NT.109 at CB.20463)
[350] Witness statement of Peter Chelberg, paragraph 22 (CM.050 at CB.19286); T.399
[360] Witness statement of John Griffiths, paragraph 25 (NT.115 at CB.20473)
[367] Witness statement of Geoffrey Rudman Hughes, paragraph 55 (NT.109 at CB. 20464)
[376] Witness statement of John Griffiths, paragraph 26 (NT.115 at CB.20473)
[378] CM.050.058; see also witness statement of John Griffiths, paragraph 27 (NT.115 at CB.20473)
[387] CM.050.119 and NT.041; cross examination at T.960
392] The Trust's final submissions, paragraphs 151 and 152.
[393] CM.095 at CB.13312. See also paragraph [[] above. Command's final submissions in reply, paragraphs 32 and 33.
[397] See, for example, the cross-examination of Mr Griffiths at T.2930
[398] T.2190-1; see paragraphs [[], [] to [], [] and [] above
402] The Trust's final submissions, paragraphs 147 and 182.
[403] For example, evidence of Peter Chelberg at T.412. See Command's final submissions in reply, paragraph 47.
[409] CM.050.042, CM.038 at CB.07066 to CB.07068
[412] Mr Chelberg gave evidence at T.781-2 that the dampers are located at the point where the duct comes out of the central core riser but he conceded that to locate them a floor plan would be needed as well as the fire damper schedule.
[415] NT.126; see paragraph 13 witness statement of Campbell Watt (NT.125 at CB.19481) and paragraph 9 witness statement of Adrian Brown (NT.127 at CB.19369); T.3390
[416] Paragraphs 13 and 15 of witness statement of Campbell Watt (NT.125)
[423] NT.014B, paragraphs 19, 20 and 21 at CB.00660-1; see also T.2433
[424] See paragraph [[] and following, below
439] CM.038 at CB.07304 to CB.07306; Mr Butler exhibits the same document to his affidavit sworn 31 January 2002 as exhibit "CGB 3", NT.14A at CB.19889 to CB.19891
[446] Affidavit of Clive Butler sworn 12 February 1998, paragraph 27 (NT.014B at CB.00663)
[449] CM.050.203. Note that this page is blank on the electronic court book but Mr Butler agreed to this proposition during cross examination at T.2596.
[455] CM.050 at CB.19284, paragraph 11
[456] Witness statement of Peter Chelberg, paragraph 13 (CM.050 at CB.19284)
[462] T.2401. For completeness I record that Mr Butler ceased work at Nauru House in October 2001 due to ill health. (T.2477)
[463] Witness statement of Geoffrey Rudman Hughes, paragraph 52 (NT.109 at CB.20464)
[479] Witness statement of Niral Fernando, paragraph 9 (NT.123 at CB.19393)
[480] Ibid, paragraph 10 (NT.123 at CB.19394)
[499] Command's final submission in reply, paragraph 5.
[505] T.814; at T.847 it seems an emergency lighting sign off was in the later version.
[507] Final submission, paragraph 76(b).
[508] Witness statement of Peter Chelberg, paragraph 45 (CM.050 at CB.19291); T.860
[510] CM.050 at CB.19294, paragraph 60
[512] Final submission, paragraph 158.
[517] Command's final submission in reply, paragraph 42. See also paragraph 82.
[519] CM.037 at CB.18922_A. Mr Chelberg confirmed that the fax cover sheet related to the rest of the exhibit at T.679
[520] CM.037 at CB.18920 to CB.18922; see paragraphs [[] and following
[524] CM.040. See paragraphs [[] and[] for discussion about the data sheet.
525] Meinhardt Essential Services Status Report dated 16 December 1997 (NT.082 at CB.13976)
[526] CM.050 at CB.19295 ?, paragraph 62
[529] Witness statement of Owen Langley Braddock, paragraph 74 (CM.071 at CB.19272)
[530] Witness statement of Peter Chelberg, paragraph 163 (CM.050 at CB.19319)
[531] CM.050.148, especially at CB.14187
[533] T.677 to 697 and T.832 to 834 for cross examination.
[535] For example, "Maintenance Procedures for Maintaining the Fire Prevention Features of Air Handling Systems", CM.037 at CB.18917
[537] Witness statement of Peter Chelberg, paragraph 62 (CM.050 at CB.19295)
[548] CM.071.055; see T.2779-80 for cross examination of Mr Hughes on this document.
[562] T.776, 979; see paragraph [[] and following, above
[568] NT.021. See also paragraphs [[] and following.
[571] Affidavit of Owen Langley Braddock sworn 9 February 1998, paragraph 13 (NT.039 at CB.00257)
[572] T.1536. See paragraphs [[] and [] for discussion about the versions of this document.
[576] Command's Submissions in Reply, paragraph 53.
578] Command's Submissions in Reply, paragraph 54.
[580] See paragraphs [[] to [] above
599] Witness statement of Peter Chelberg, paragraph 63 (CM.050 at CB.19295)
[602] Paragraphs 26 to 31 inclusive of Schedule 1: Defendant's Particulars under Paragraph 31C filed 12 November 1999 (CB.01018 at CB.01052-3).
[603] Witness statement of Peter Chelberg, paragraph 65 (CM.050 at CB.19296); T.994
[606] Witness statement of Peter Chelberg, paragraph 64 (CM.050 at CB.19295)
[611] Witness statement of Peter Chelberg, paragraph 66 (CM.050 at CB.19296)
[615] Item 6 in Schedule A to the Trust's amended defence and counterclaim filed 5 February 2002.
[616] Paragraph 37 of Schedule 1: defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01018 at CB.01055).
[617] Ibid, paragraph 39 (CB.01018 at CB.01055-6).
[618] Witness statement of Ian Gardner, paragraphs 77 and 78 (NT.099 at CB.19412). It is not clear to whom (if anyone) these concerns were expressed.
[619] Witness statement of Peter Chelberg, paragraph 76 (CM.050 at CB.19298)
[626] Witness statement of Peter Chelberg, paragraph 89 (CM.050 at CB.19301-2)
[627] Witness statement of Ian Gardner, paragraph 56 (NT.099 at CB. 19407)
[628] Item 7 in Schedule A to the Trust's Amended Defence and Counterclaim filed 5 February 2002.
[629] Item 8 in Schedule A to the Trust's Amended Defence and Counterclaim filed 5 February 2002.
[630] Item 9 in Schedule A to the Trust's Amended Defence and Counterclaim filed 5 February 2002.
[631] Paragraph 49 of Schedule 1: Defendant's particulars under paragraph 31C of its amended defence and counterclaim filed 12 November 1999
[632] Paragraphs 49-52 inclusive of Schedule 1: defendant's particulars under paragraph 31C filed 12 November 1999 (CB.01018 at CB.01059-62).
[633] Ibid, paragraph 68 (CB.01018 at CB.01071-2).
[634] Ibid, paragraph 74(f) (CB.01018 at CB.01073-4).
[635] Ibid, paragraph 74(b), (c) and (e) (CB.01018 at CB.01073).
[636] Affidavit of Clive Butler sworn 12 February 1998, paragraph 33 (NT.014B at CB.00665)
[637] Affidavit of Clive Butler sworn 12 February 1998, paragraphs 33 and 34 (NT.014B at CB.00665)
[639] Affidavit of Clive Butler sworn 12 February 1998, paragraph 35 (NT.014B at CB.00665)
[640] Ibid, paragraph 36 (NT.014B at CB.00665)
[641] Ibid, paragraph 37 (NT.014B at CB.00665-6)
[642] Ibid, paragraph 38 (NT.014B at CB.00666)
[643] Witness statement of Ian Gardner, paragraph 57 (NT.099 at CB.19407)
[644] Ibid, paragraph 58 (NT.099 at CB.19407-8)
[650] Affidavit of Clive Butler sworn 12 February 1998, paragraph 37 (NT.014B at CB.00665-6)
[652] CM.050.071; witness statement of Peter Chelberg, paragraphs 91 to 93 (CM.050 at CB.19302)
[653] Witness statement of Peter Chelberg, paragraphs 94 (CM.050 at CB.19302)
[657] Witness statement of Peter Chelberg, paragraph 95 (CM.050 at CB.19303)
[664] CM.050.078 at CB.13466-8; T.1034-6
[665] The Trust's closing submissions, paragraph 224.
[670] Ibid, paragraph 97, 98 and 100 (CM.050 at CB.19303-4)
[672] Ibid, paragraph 100 (CM.050 at CB.19304); letter from York dated 25 February 1998 (CM.050.077)
[676] Paragraph 31C(c) of the further amended defence and counterclaim as read with Schedule A (item 7)
[678] Paragraph 44 of Schedule 1: Defendant's Particulars Under Paragraph 31C of Defence and Counterclaim filed 12 November 1999; affidavit of Clive Butler sworn 12 February 1998, paragraph 32 (NT. 014B at CB. 00664)
[683] Affidavit of Clive Butler sworn 12 February 1998, paragraph 29 (NT.014B at CB.00663-4)
[687] Witness statement of Peter Chelberg, paragraph 82 (CM.050 at CB.19300)
[689] Affidavit of Clive Butler sworn 12 February 1998, paragraph 30 (NT.014B at CB.00664)
[693] Affidavit of Clive Butler sworn 12 February 1998, paragraph 31 (NT.014B at CB.00664)
[694] Ibid, paragraph 32 (NT.014B at CB.00664)
[695] Witness statement of Peter Chelberg, paragraph 81 (CM.050 at CB.19300)
[697] Witness statement of Peter Chelberg, paragraph 88 (CM.050 at CB.19301); see also T.560
[698] Ibid, paragraph 82 (CM.050 at CB.19300)
[705] Witness statement of Peter Chelberg, paragraph 85 (CM.050 at CB.19301)
[713] Witness statement of Peter Chelberg, paragraph 87 (CM.050 at CB.19301)
[715] CM.050.063 at CB.19237; see also CM 050.069 at CB 14498.
[721] The Trust's final submissions, paragraph 205
[722] CM.050.062 at CB.13722 to CB.13762
[723] The Trust's final submissions, paragraph 206
[725] The Trust's final submissions, paragraph 210
[731] The Trust's final submissions, paragraph 211
[733] Command's submissions in reply, paragraph 2.22 (page 35); T.3783
[737] The Trust's closing submissions, paragraph 202
[739] Items 7 and 11 of Schedule A to the Trust's amended defence and counterclaim filed 5 February 2002
[740] Paragraph 53 of Schedule 1: defendant's particulars under paragraph 31C of the defence and counterclaim filed 12 November 1999.
[743] Maintenance agreement, clause 2.1.
[744] Paragraph 53 of Schedule 1: defendant's particulars under paragraph 31C of its defence and counterclaim filed 12 November 1999.
[748] Paragraph 58 of schedule 1: defendant's particulars under paragraph 31C of its defence and counterclaim filed 12 November 1999
[772] Witness statement of Ian Gardner, paragraph 40 (NT.099 at CB.19404)
[773] Ibid, paragraph 41 (NT.099 at CB.19404); Meinhardt initial findings (NT.051 at CB.14298)
[774] Meinhardt initial findings (NT.051 at CB.14298-9)
[776] Witness statement of Ian Gardner, paragraph 55 (NT.099 at CB.19407); Meinhardt "Engineering Services Preliminary Report February 1998" (NT.099.002 at CB.14329)
[777] Engineering Services Preliminary Report, February 1998 (NT.099.002 at CB.14328-9)
[778] Indeed, under cross examination a witness for the Trust accepted that inhibitor had been detected in the various water systems (see paragraph [[] below).
779] Ibid, paragraph 105 (CM.050 at CB.19305)
[780] Letter Nalco to Mr Chelberg dated 6 March 1998 (CM.050.081 at CB.14587-8)
[784] Witness statement of Peter Chelberg, paragraph 106 (CM.050 at CB.19305)
[785] Paragraph 3 of report dated 22 January 2002 (Attachment B to the witness statement of Richard Bentham (CM.082 at CB.19647))
[786] Witness statement of Peter Chelberg, paragraph 108 (CM.050 at CB.19306)
[790] CM.050.043 and NT.104 at CB.12932
[795] Witness statement of Peter Chelberg, paragraph 109 (CM.050 at CB.19306-7)
[797] Witness statement of Peter Chelberg, paragraph 111 (CM.050 at CB.19307)
[798] The Trust's final submissions, paragraph 281
[801] Maintenance agreement, clause 2.1 (CM.003 at CB.17917)
[802] Witness statement of Peter Chelberg, paragraph 102 (CM.050 at CB.19304)
[804] Letter Nalco to Mr Chelberg dated 6 March 1998 (CM.050.081 at CB.14589)
[805] Witness statement of Peter Chelberg, paragraph 102 (CM.050 at CB.19304)
[812] Witness statement of Ian Gardner, paragraph 43 (NT.099 at CB.19404-5)
[813] Ibid, paragraph 45 (NT.099 at CB.19405)
[819] The Trust's final submissions, paragraph 272
[821] Paragraph 3 of report dated 22 January 2002 (Attachment B to the witness statement of Richard Bentham (CM.082 at CB.19646-7))
[824] The Trust's final submissions, paragraph 298(f)
[833] Witness statement of Ian Gardner, paragraph 43 (NT.099 at CB.19404-5)
[835] Letter Nalco to Mr Chelberg dated 6 March 1998 (CM.050.081 at CB.14588)
[836] Witness statement of Peter Chelberg, paragraph 103 (CM.050 at CB.19304)
[840] Command's final submissions in reply, paragraph 59
[841] Witness statement of Antonino Ventura, paragraphs 6 and 7 (NT.128 at CB.19475)
[843] Paragraph 4 of report dated 22 January 2002 (Attachment B to the witness statement of Richard Bentham (CM.082 at CB.19647))
[850] Witness statement of Jill Anderson, paragraph 4 (NT.133 at CB.19351)
[852] Witness statement of Jill Anderson, paragraph 7 (NT.133 at CB.19351)
[860] Paragraph 6 of report dated 22 January 2002 (Attachment B to the witness statement of Richard Bentham (CM.082 at CB.19647))
[866] Ibid, paragraph 12 (NT.133 at CB.19353)
[869] Paragraph 6 of report dated 22 January 2002 (Attachment B to the witness statement of Richard Bentham (CM.082 at CB.19648))
[871] Affidavit of Ian Gardner sworn 12 February 1998, paragraph 8 (CM.050.008 at CB.00610)
[872] Witness statement if Ian Gardner, paragraph 44 (NT.099 at CB.19405)
[895] The Trust's amended defence and counterclaim filed 5 February 2002, paragraph 31C(c)(i).
[896] Paragraph 144(ii), Schedule 1(Part B): defendant's particulars under paragraph 31C of defence and counterclaim filed 1 December 1999.
[898] Witness statement of Peter Chelberg, paragraph 139 (CM.050 at CB.19313)
[899] Ibid, paragraph 113 (CM.050 at CB.19307)
[906] Witness statement of Peter Chelberg, paragraph 136; timesheet CM.050.119
[911] Witness statement of Peter Chelberg, paragraph 139 (CM.050 at CB.19313)
[925] CM.050.043, NT.106 and CM.050.187
[934] Witness statement of Peter Chelberg, paragraph 138 (CM.050 at CB.19313)
[935] Witness statement of Peter Chelberg, paragraph 140 (CM.050 at CB.19313)
[937] Ibid, paragraphs 142, 144 and 145 (CM.050 at CB.19314)
[941] The Trust's final submissions, paragraph 301
[946] Witness statement of Peter Chelberg, paragraphs 148 and 149 (CM.050 at CB.19315)
[951] Witness statement of Peter Chelberg, paragraph 146 (CM.050 at CB.19314)
[953] Item 13, Schedule A to the Trust's amended defence and counterclaim filed 5 February 2002
[955] Witness statement of Peter Chelberg, paragraph 136 (CM.050 at CB.19312-3)
[963] Item 14 of Schedule A of the Trust's amended defence and counterclaim filed 5 February 2002.
[964] Paragraph 91 of Schedule 1 of the Trust's particulars under paragraph 31C of its defence and counterclaim filed 12 November 1999
[967] Witness statement of Ian Gardner, paragraph 95 (NT.099 at CB.19416) - Note: Mr Gardner states that the report of Copeland Electrical Services Pty Ltd is annexed to the April 1998 Meinhardt report but the copy being NT.050 does not appear to include the annexure (see CB.15030)
[971] Witness statement of Peter Chelberg, paragraph 158 (CM.050 at CB.19317-8)
[972] Witness statement of Peter Chelberg, paragraph 154 (CM.050 at CB.19316-7)
[974] CM.041 at CB.17595 and CB.17599-17602
[975] Paragraph 31C(c)(iii) of the Trust's further amended defence and counterclaim filed 5 February 2002
[976] Paragraph 145(ii) of Schedule 1 (Part B) of the Trust's particulars under paragraph 31C of its defence and counterclaim filed 1 December 1999
[981] Witness statement of Peter Chelberg, paragraphs 178 to 198 (CM.050 at CB.19322
[984] Witness statement of Peter Chelberg, paragraph 197 (CM.050 at CB.19326)
[985] Witness statement of Peter Chelberg, paragraph 195 (CM.050 at CB.19326)
[986] See annotated particulars under paragraph 31C of the Trust's defence and counterclaim (Annexure "C" to the written submissions)
[987] Paragraph 31C(c)(vii) of the Trust's further amended defence and counterclaim filed 5 February 2002
[988] Paragraph 149(ii) of Schedule 1(Part B) of the Trust's particulars under paragraph 31C of its defence and counterclaim
[989] Ibid, paragraph 149(iii); paragraph 21 of affidavit of Ian Gardner sworn 12 February 1998
[990] Witness statement of Ian Gardner, paragraph 71 (NT.099 at CB.19411)
[991] Witness statement of Peter Chelberg, paragraph 207 (CM.050 at CB.19329)
[992] Ibid, paragraph 208 (CM.050 at CB.19330)
[993] Ibid, paragraph 209 (CM.050 at CB.19330)
[994] Ibid, paragraph 208 (CM.050 at CB.19330)
[1000] All information in this and the following paragraphs in this section taken from the Command schedule of works in relation to the general audit (NT.021 at CB.13119_H to CB.13119_L).
[1002] Witness statement of Peter Chelberg, paragraph 163 (CM.050 at CB.19319)
[1004] Maintenance agreement, Schedule B, clause 4.6 (CM.003 at CB.17944-5).
[1007] Paragraph 31C(j) of the Trust's amended defence and counterclaim filed 5 February 2002.
[1009] The Trust's final submissions, paragraph 280
[1010] CM.050.092 at CB.14621_FC to CB.14621_FV
[1015] Witness statement of Peter Chelberg, paragraph 162 (CM.050 at CB.19318)
[1016] NT.099.009, NT.099.010, CM.050.082
[1021] The Trust's closing submissions, paragraph 280
[1026] CM.050.148 at CB.14214; see also witness statement of Peter Chelberg, paragraph 163 (CM.050 at CB.19319)
[1027] Paragraph 91 of Schedule 1 of the Trust's particulars under paragraph 31C of its defence and counterclaim filed 12 November 1999
[1031] Witness statement of Peter Chelberg, paragraph 157 (CM.050 at CB.19317)
[1033] Witness statement of Peter Chelberg, paragraph 159 (CM.050 at CB.19318)
[1034] CM.050.38 at CB.19028 (duplicated in CM.041 at CB.17602)
[1039] Amended defence and counterclaim filed 5 February 2002, paragraph 31F(i)(ii).
[1041] CM.001 at CB.01691 to CB.01698.
[1044] Witness statement of David Smith McKinley McEachran, paragraph 9 (NT. 120 at CB.19454)
[1049] The Trusts' amended defence and counterclaim, paragraph 54(d)(iii)
[1055] NT.120.002 at CB.02746 and 02747 but see CB.02470
[1058] Ibid at CB.02800to CB.02802 and CB.02807
[1066] The Trust's supplementary further and better particulars of sub-paragraph 31F(e) of the defence and counterclaim filed 30 November 1999, paragraph 1 (which refers to paragraph 31F(c)(i), but which, by its terms, provides particulars of 31F(e)(ii) which later became 31F(i)(ii) in the amended defence and counterclaim)
[1072] Ibid, particulars to paragraph 54.
[1074] Supplementary further and better particulars of this paragraph filed by the Trust on 30 November 1999 stated: "The Defendant is presently unable to provide further particulars."
[1075] Ibid, paragraphs 29 and 18(r).
[1077] Command's further amended reply and defence to counterclaim filed 19 March 2002, paragraph 27.
[1082] [1992] HCA 55; (1992) 175 CLR 514 at 525
[1087] See quotation submitted by Control Instrumentation dated 10 May 1993, items 1.6 and 1.7 (NT.120.002 at CB.02960) appended to the Bassett report dated 31 May 1993.
[1093] The Trust's final submissions, paragraph 550
[1098] The Trust's final submissions, paragraph 540
[1102] Witness statement of John Sydney Whifield, paragraph 10 (NT.135 at CB.20683)
[1103] Ibid at paragraph 15 (NT.135 at CB.20684)
[1104] Ibid at paragraph 19 (NT.135 at CB.20689)
[1107] Witness statement of John Sydney Whifield, paragraph 15 (NT.135 at CB.20684) and T.3506
[1109] The Trust's final submissions, paragraph 541
[1110] Witness statement of David Smith McKinley McEachran, paragraph 35(a) (NT. 120 at CB.19460)
[1113] The Trust's amended defence and counterclaim filed 5 February 2002, paragraph 52(d)
[1115] Witness statement of David Smith McKinley McEachran, paragraph 24 (NT. 120 at CB.19457)
[1118] NT.120.008; see also evidence of Owen Braddock in paragraph 55(c)(i) of his witness statement to the effect that the installation ran over budget due to variations ordered by Mr McEachran (CM.071 at CB.19267)
[1120] Witness statement of David Smith McKinley McEachran, paragraph 27(i) (NT. 120 at CB.19459)
[1122] Witness statement of Geoffrey Rudman Hughes, paragraph 12 (NT. 109 at CB. 20453)
[1124] Witness statement of David Smith McKinley McEachran, paragraph 27 (NT. 120 at CB.19458)
[1125] Ibid, paragraph 27 (NT. 120 at CB.19458)
[1126] Ibid, paragraph 35 (NT. 120 at CB.19461)
[1127] Witness statement of Owen langley Braddock, paragraph 55(c)(i) (CM.071 at CB.19267)
[1136] United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 30
[1142] Witness statement of Geoffrey Rudman Hughes, paragraph 17 (NT.109 at CB.20453)
[1143] Ibid, paragraph 16 (NT.109 at CB.20453)
[1147] Witness statement of Geoffrey Rudman Hughes, paragraph 19 (NT.109 at CB.20455)
[1152] Witness statement of David Smith McKinley McEachran, paragraph 32 (NT.120 at CB.19460) and NT.077
[1153] Ibid, paragraph 44 (NT.120 at CB.19463)
[1154] [1940] 3 All ER 60 at 71
[1155] Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] UKHL 11; [1980] 1 All ER 571 at 576
[1156] Per Gibbs CJ in Shevill & Anor v The Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620 at 625-6
[1157] Ibid at 626 quoting from Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7; [1962] 2 QB 26 at 64
[1158] Per Deane and Dawson JJ in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1988) 166 CLR 623 at 658
[1161] Lord Dundein in Forslind v Bechley-Crundall 1922 SC (HL) 173 at 190 quoted by Deane and Dawson JJ in Laurinda op cit at 658
[1162] Lord Shaw of Dunfermline in Forslind at 192 quoted by Deane and Dawson JJ in Laurinda op cit at 658
[1163] Per Deane and Dawson JJ, ibid at 658-659
[1165] The Trust's final submissions, paragraphs 450 and 451
[1166] Paragraph 31C(a) read with paragraph 31H of the amended defence and counterclaim filed 5 February 2002.
[1170] The Trust's final submissions, paragraph 460
[1173] [1911] HCA 65; (1911) 13 CLR 490 at 499
[1175] Ibid at 500 (per Griffiths CJ) and at 501-2 (per O'Connor J)
[1176] (1888) 39 Ch D 339 at 357
[1179] [2000] HCA 64; (2000) 75 ALJR 312 at 322
[1181] [2000] HCA 64; (2001) 75 ALJR 312 at 315-6
[1182] [1984] HCA 64; (1984) 156 CLR 41 at 96-7
[1183] [1984] HCA 64; (1984) 156 CLR 41 at 142
[1187] [1938] HCA 34; (1938) 60 CLR 336 at 347
[1188] [1989] HCA 23; (1989) 166 CLR 623 at 642
[1189] Ibid per Deane and Dawson JJ at 658
[1190] Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 per Jordan CJ at 641
[1191] Laurinda op cit per Brennan J at 642
[1193] (1938) 38 SR (NSW) 632 at 641-2
[1194] [1938] HCA 66; (1938) 61 CLR 286 at 302
[1195] The Trust's final submissions, paragraph 472(b)
[1196] The Trust's final submissions, paragraph 473
[1198] Maintenance agreement, clause 2.1 (CM.003 at CB.17917)
[1199] [1951] HCA 24; (1951) 83 CLR 322 at 339
[1205] Ibid per Deane and Dawson JJ at 657
[1210] The Trust's final submissions, paragraph 456
[1213] Clause 7.1(a) of the maintenance agreement (CM.003 at CB.17926)
[1214] Ibid, clause 7.1(b) (CM.003 at CB.17926)
Command Energy Pty Ltd
Nauru Phosphate Royalties Trust [2003] VSC 261
(1977) 180 CLR 266
(1938) 60 CLR 336
(1992) 175 CLR 514
(1982) 149 CLR 620
(1988) 166 CLR 623
(1911) 13 CLR 490
(2000) 75 ALJR 312
(1984) 156 CLR 41
(2001) 75 ALJR 312
(1989) 166 CLR 623
(1938) 61 CLR 286
(1951) 83 CLR 322