David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Limited

David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Limited - [2025] NSWSC 7 - NSWSC 2024 case summary — Zoe

[3]

INTRODUCTION

This is an application by the defendants, Lendlease Corporation Limited (an international property and infrastructure company listed on the Australian Securities Exchange (ASX)) and Lendlease Responsible Entity Ltd as responsible entity for Lendlease Trust (LRE), to set aside a notice to produce dated 24 June 2024 (Original NtP) issued by the plaintiffs, David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund (first plaintiff) and Martin John Fletcher (second plaintiff), in these proceedings.
The application came before me for hearing on 23 August 2024, during which the plaintiffs indicated that they would recast the Original NtP to seek to overcome many of the objections raised by the defendants to the Original NtP. The plaintiffs then reformulated the Original NtP in two proposed alternative forms which were submitted to the defendants on 30 August 2024 (Alternative NtPs): a very detailed alternative version (Detailed NtP) and a summarised alternative version (Summary NtP).
In submissions and evidence provided to me across September and October 2024, the defendants maintained their objections to the Original NtP and also objected to the Alternative NtPs, saying that they fail to cure the deficiencies in the Original NtP, and that the court should not order the production of documents under any form of the notice to produce. The defendants also say that if production is ordered pursuant to any part of the Original NtP or the Alternative NtPs, the plaintiffs should be ordered to pay the defendants' substantial costs of compliance and also pay the defendants' costs of this application.
The plaintiffs press for production of the documents under the Original NtP, saying that the defendants' costs and time to produce documents in accordance with it would be lower than under either of the Alternative NtPs.
In summary, for the reasons set out below, I have concluded that the Original NtP should be set aside and that it is not necessary to deal with the issue of any production of documents under either of the Alternative NtPs.

[5]

The principal proceedings and the central allegations

On 18 April 2019, the first plaintiff filed the summons commencing the proceedings against the defendants. The first plaintiff brought the proceedings as a class action on behalf of persons who acquired an interest in stapled securities in the defendants during the period 17 October 2017 to 8 November 2018 (Relevant Period). The first plaintiff was represented by Maurice Blackburn Lawyers (MBL).
On 6 August 2019, the second plaintiff filed the summons also commencing class action proceedings against the defendants. The second plaintiff was represented by Phi Finney McDonald (PFM).
On 21 November 2019, the two proceedings were consolidated pursuant to orders made by Hammerschlag CJ in Eq, including that there would be only one solicitor on the record, and that until agreement as to who that would be was reached, the solicitor then on the record in the proceedings commenced by the first plaintiff (MBL) would assume that role. I understand that PFM later acted for the plaintiffs (from August 2021 to December 2023), following which MBL resumed being the solicitors on the record for the plaintiffs.
On 24 December 2019, the plaintiffs filed a Consolidated Commercial List Statement (CLS) and Amended Summons.
On 28 February 2020, the defendants filed their Consolidated Commercial List Response (CLR).
In short, the allegations in the proceedings concern pre-tax provisions the plaintiffs allege Lendlease should have taken and certain reductions in after-tax profits they allege Lendlease should have made with respect to three construction projects that Lendlease was undertaking as part of its engineering and services business (Engineering Business) within the Relevant Period.
During the Relevant Period, the Engineering Business was undertaking the design and/or construction of the following major infrastructure projects (collectively, the Projects): 1. NorthConnex (NCX): a nine-kilometre tunnel connecting the M1 Pacific Motorway to the M2 Hills Motorway in northern Sydney, New South Wales. NCX was undertaken by Lendlease in a 50:50 joint venture with Bouygues Construction Australia Pty Ltd (LLBJV). 2. Gateway Upgrade North (GUN): the widening of, and improvements to, the Gateway Motorway North in Brisbane, Queensland. 3. Kingsford Smith Drive Upgrade (KSD): the widening of, and improvements to, Kingsford Smith Drive in Brisbane, Queensland.
The plaintiffs, on behalf of group members, claim that they suffered loss after purchasing securities in the defendants (each representing one ordinary share in Lendlease, stapled to one unit in the Lendlease Trust) at an artificially inflated price when the price of the defendants' securities dropped following an announcement to the ASX on 9 November 2018.
In the latest form of the allegations made (which I will deal with in more detail below), the plaintiffs contend that the defendants breached their continuous disclosure obligations and engaged in misleading or deceptive conduct during the Relevant Period. In particular, the plaintiffs allege that in the Relevant Period, the defendants breached: 1. their obligations of continuous disclosure under s 674(2) of the Corporations Act 2001 (Cth) by failing to disclose to the market, by specified dates, the following information: 1. that the defendants needed to take additional pre-tax provisions, in specified amounts, in the then-current financial period (Provision Information); and 2. that the defendants' profits for the six months to 31 December 2017 and for the 12 months to 30 June 2018 would be reduced by specified amounts (Profit Information). 1. the statutory prohibitions against misleading and deceptive conduct in s 18 of the Australian Consumer Law and s 12DA of the Australian Securities and Investments Act 2001 (Cth) by allegedly representing to current and prospective investors that improved performance in its Engineering Business was likely; that adequate provisions had been made in relation to its Engineering Business; as to the defendants' financial performance; and that there was a reasonable basis for making those alleged representations.
The Engineering Business was sold by Lendlease in 2020.

[6]

Discovery provided by the defendants

Since 2020, the defendants have provided extensive discovery to the plaintiffs at considerable cost as follows: 1. Pursuant to court orders made by consent on 13 May 2020 (Original Discovery Orders), between June and December 2020, the defendants produced 40,853 documents across five tranches falling within one or more of eight specified categories in the Original Discovery Orders. Those documents, created and/or dated within the Relevant Period and relating to the Projects, included organisational and/or reporting line charts; minutes, papers and reports; external audit or external project review reports; signed contracts; and final speaking notes or talking points prepared by or for certain officers of Lendlease. In addition, the defendants listed a further 10,767 documents over which claims for privilege were made. The defendants' costs of collating, reviewing and producing documents in answer to the Original Discovery Orders were in excess of $5.5 million. 2. Between 24 November 2020 and 21 April 2021, in response to various requests by the plaintiffs for further documents made in the context of good faith discussions in relation to document enquiries, the defendants produced a relatively small number of additional documents. 3. On 29 June 2021 and 20 July 2021, following an application made by the plaintiffs on 21 April 2021 which was opposed by the defendants, the court made orders that the defendants provide further discovery (being part of the discovery which had been sought by the plaintiffs) (Further Discovery Orders) on terms that the plaintiffs pay $200,000 for that part of the discovery. On 1 October 2021, in answer to the Further Discovery Orders, the defendants produced a further 15,771 documents falling within one or more of seven specified categories or responding to specified keyword search terms within the mailboxes of four specified custodians. Those documents, dated within the Relevant Period, included notices of delays to the Projects; schedules or registers of variations for the Projects; schedules or registers of extensions of time for the Projects; schedules or registers of notices of dispute for the Projects; schedules or registers of inspections and status of completion for the Projects; and presentations, minutes, agendas, papers and notes in relation to team workshops conducted on the Projects. In addition, a further 2,463 documents were listed by the defendants over which claims of privilege were made. 4. Since 1 October 2021, the defendants have produced a small number of additional documents to the plaintiffs as and when documents captured by the Original Discovery Orders and Further Discovery Orders were identified. 5. On 18 October 2021, the defendants served the first version of their verified list of documents. Between 13 November 2021 and 3 December 2021, the parties exchanged correspondence in which the plaintiffs sought additional details regarding the list of documents. 6. On 3 December 2021, the defendants agreed to provide a supplementary list of documents which dealt with privileged documents, while denying that the verified list of documents served on 18 October 2021 was non-compliant. 7. On 18 February 2022, the defendants provided an unverified version of the supplementary list of documents to the plaintiffs. 8. On 9 March 2022, the defendants provided the final verified list of documents to the plaintiffs.
Between 22 July 2022 and 2 September 2022, the parties engaged in lengthy correspondence regarding the plaintiffs' assertions that the defendants' discovery was deficient because there were no documents showing on a monthly, quarterly or other basis, how the projected losses on each of the Projects were accounted for in the defendants' accounts as between provisions in the Projects and provisions held outside the Projects. The plaintiffs sought these further documents from the defendants to assist the plaintiffs' experts. The defendants rejected the suggestion that they had not complied with their discovery obligations and provided guidance on the location of relevant documents within the discovery. Some of this correspondence is referred to further below.
The unchallenged evidence of the defendants is that over 4.6 million documents were collated and processed into the defendants' solicitors' discovery database (known as Relativity) to enable the defendants to comply with the Original Discovery Orders and the Further Discovery Orders.

[7]

Issues with the CLS and service of the plaintiffs' lay and expert evidence

On 22 February 2022, following completion of discovery in accordance with the Original Discovery Orders and the Further Discovery Orders, the solicitors for the defendants, Herbert Smith Freehills (HSF), wrote to the then solicitors on the record for the plaintiffs, PFM. In that letter, HSF raised concerns they held regarding the CLS, including as to the articulation of the plaintiffs' case, identifying what it considered to be deficiencies (principally, lack of specificity and precision) in the plaintiffs' allegations as formulated, and expressing their view that these deficiencies rendered parts of the CLS - in particular, paragraphs 22, 50 and 51 - liable to be struck out. Objection was taken mainly to "imprecision" in the definitions of the alleged "Project Information" and "Unreliable Performance Information" in paragraphs 50 and 51, by reason of which, HSF said, the defendants were unable to identify what information the plaintiffs allege should have been disclosed to the ASX and when.
HSF's letter of 22 February 2022 concluded by stating that given that extensive discovery had been given by the defendants to date, the plaintiffs could reasonably be expected to be in a position to clearly articulate their case. HSF sought confirmation by 7 March 2022 that a proposed amended commercial list statement addressing the identified deficiencies would be provided by a date not later than the next directions hearing (which was fixed for 18 March 2022), and noted that the defendants reserved their rights to file and serve a notice of motion to strike out the defective aspects of the CLS.
On 14 March 2022, PFM sent a letter to HSF responding to correspondence from HSF (including its letter of 22 February 2022) and enclosing draft proposed orders, including provision for the plaintiffs to serve their lay and expert evidence by 14 July 2022 and, subsequent to that, for the plaintiffs to serve a proposed amended commercial list statement by 4 August 2022.
On 16 March 2022, Hammerschlag J (as the Chief Judge in Equity then was) made orders in the proceedings by consent directing the plaintiffs to serve any lay and expert evidence by 4 August 2022 and to serve a proposed amended commercial list statement by 25 August 2022, with the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file it by 15 September 2022 (March 2022 orders).
In the lead-up to and following the dates fixed by the March 2022 orders, the parties exchanged correspondence as follows: 1. On 22 July 2022, PFM wrote to HSF in relation to the plaintiffs' expert evidence, indicating that in preparing that evidence, an apparent lack of documents (provisioning documents) showing, on a monthly, quarterly or other basis, how the projected losses on each of the Projects were accounted for in Lendlease's accounts (as between provisions in the Projects and provisions held outside the Projects) had been identified. PFM asserted that no such documents had been produced by the defendants as part of their discovery, in circumstances where the plaintiffs would have expected such documents to be captured by the categories prescribed in the Original Discovery Orders. PFM stated that irrespective of whether such documents were so captured, the plaintiffs' expert considered that those documents existed, would be readily identifiable by the defendants, and would (if produced to the plaintiffs) avoid substantial wasted costs from evidence having to be redone if such provisioning documents were only to emerge as part of the defendants' evidence. PFM requested production of the provisioning documents, and noted that this issue, affecting the preparation of their expert evidence, would likely mean the timetable for the provision of evidence would need to be adjusted. 2. On 31 July 2022, PFM wrote to HSF noting, with regret, the plaintiffs' inability to meet the 4 August 2022 deadline for the provision of their evidence, citing illness and unavailability among the plaintiffs' experts, the interrelated nature of the evidence being prepared, and other logistical issues. PFM also referred to the issue of the provisioning documents raised in their 22 July 2022 letter, to which HSF had provided an answer via email on 26 July 2022 with an estimated timeframe for a substantive response from the defendants to the plaintiffs' request. PFM proposed a new timetable in light of this estimated timeframe, enclosing draft orders extending the deadline for service of the plaintiffs' lay and expert evidence to 30 September 2022 and the deadline for service of a proposed amended commercial list statement to 21 October 2022 (an extension of approximately eight weeks to the timetable fixed by the March 2022 orders). 3. On 1 August 2022, HSF wrote to PFM in response to PFM's letters of 22 and 31 July 2022. HSF expressed concern at the timing of the plaintiffs' request in respect of the provisioning documents, being nearly two years after discovery was first given by the defendants, two weeks before the plaintiffs' evidence deadline, and in circumstances where the plaintiffs could be expected to have substantially progressed their review of the discovery already given. HSF also rejected any suggestion that the defendants' discovery had been incomplete, deficient or otherwise not in compliance with their obligations, stating that "[t]he fact that your clients have belatedly sought to suggest they cannot identify particular documents within the extensive discovery provided is not a matter caused by our clients". The letter then provided a substantive response to the plaintiffs' enquiries, setting out guidance in relation to the provisioning documents including by directing PFM to particular "instructive" categories of documents (reporting materials) that were already contained in the defendants' discovery and that disclosed the relevant reporting structures of the Engineering Business. 4. On 2 August 2022, HSF sent a further letter to PFM in relation to the draft orders attached to PFM's letter of 31 July 2022 proposing an extension of the time for service of the plaintiffs' expert evidence, requesting a more thoroughgoing explanation of the causes of and reasons for the delay, the late communication to the defendants of that delay, and the need for an eight-week extension. HSF also rejected PFM's characterisation of the matter of the provisioning documents as a basis for seeking the proposed extension.
The plaintiffs failed to serve their evidence by 4 August 2022 in accordance with the March 2022 orders.
On 8 August 2022, PFM wrote to HSF in response to HSF's letter of 2 August 2022. PFM observed that the plaintiffs had accommodated similar delays in connection with the defendants' production of documents and provision of further discovery (including between December 2020 and June 2021), and that this was important background to consider in any debate about the orderly and efficient conduct and progress of the proceedings. PFM then referred to the following matters by way of explanation for the delays encountered by the plaintiffs in the preparation of their evidence: 1. The plaintiffs' main liability expert, on whose work the completion of the plaintiffs' other experts' work depends, was first briefed in May 2021, and since then the brief had been progressively updated as further discovery was given by the defendants and as the expert himself made requests for further information. 2. The plaintiffs' main liability expert had been affected by illness and was also unavailable between January 2022 and April 2022 owing to overseas court commitments in another matter. At the time the March 2022 orders were agreed, the liability expert considered that the timeframe would be sufficient; due to intervening events including illness, however, that turned out not to be the case. 3. The task of the plaintiffs' main liability expert involved understanding, analysing and developing discrete opinions on each of the Projects, and that had taken more time than anticipated.
On 17 August 2022, HSF wrote to PFM, stating that the defendants did not oppose the proposed orders attached to PFM's letter of 31 July 2022, on the basis that the defendants be afforded a commensurate period (towards which any holiday or court recess period would not count) within which to prepare their lay and expert evidence.
On 19 August 2022, PFM sent an email to HSF noting, among other things, the plaintiffs' acceptance that the entitlement of the defendants to a commensurate period of time to prepare their evidence would be a relevant consideration when it came time to formulate timetabling orders in respect of the same.
The plaintiffs did not serve a proposed amended commercial list statement by the 25 August 2022 deadline prescribed by the March 2022 orders.
On 29 August 2022, Ball J made orders by consent vacating the March 2022 orders in part and directing the plaintiffs to serve any lay and expert evidence by 30 September 2022 and to serve a proposed amended commercial list statement by 21 October 2022, with the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file it by 11 November 2022 (August 2022 orders).
On 29 September 2022 (the day before the deadline fixed by the August 2022 orders for service of the plaintiffs' evidence), PFM wrote to HSF enclosing draft proposed orders and requesting, among other things, a further four-week extension to that deadline. PFM again cited the involved nature of the task to be undertaken by the plaintiffs' main liability expert, and the fact that his opinions would furnish the assumptions to be provided to the plaintiffs' other experts. PFM raised, once more, the matter of the provisioning documents, stating that, "in the absence of clear documentation of the reconciliation of such provisions in your clients' accounts on a monthly, quarterly or other basis, the expert has been required to consider a large volume of material and make assumptions on the provisions being allocated, applied and raised during the Relevant Period" and noting that that process was taking longer than anticipated. Finally, PFM pointed to the engagement of two senior members of the plaintiffs' counsel team in long-running trials at various times throughout August and September 2022 as a source of additional delay in completing the plaintiffs' evidence. The enclosed draft proposed orders made provision for the plaintiffs' to serve their evidence by 28 October 2022 and a proposed amended commercial list statement by 18 November 2022 (proposed September 2022 orders).
The plaintiffs did not serve their evidence by the 30 September 2022 deadline fixed by the August 2022 orders.
On 13 October 2022, having sought (and PFM having refused to provide) further information regarding the plaintiffs' delay to enable the defendants to consider the plaintiffs' proposed four-week extension, HSF sent a letter to PFM enclosing proposed amended draft orders. In material respects, those proposed amended orders retained the form of the proposed September 2022 orders.
On 25 October 2022, PFM sent an email to HSF stating that while the plaintiffs' lay and expert evidence was substantially advanced, due to expert unavailability that week and the following week, the plaintiffs now anticipated being in a position to serve their lay and expert evidence by 9 November 2022. Attached to that email were draft proposed orders extending the time for service of the plaintiffs' lay and expert evidence to 9 November 2022 and service of a proposed amended commercial list statement to 30 November 2022. PFM emailed HSF with a further draft set of orders in substantially identical form on 26 October 2022.
The plaintiffs did not serve their evidence by the 28 October 2022 deadline proposed in accordance with the proposed September 2022 orders.
On 28 October 2022, HSF wrote to PFM responding to PFM's previous correspondence, including their letter of 25 October 2022, noting that the plaintiffs now sought (cumulatively) a 13.5-week extension to the original deadline for service of their evidence of 4 August 2022, and stating that PFM had failed to address HSF's questions and concerns regarding the reasons for these delays. HSF stated that in order to ensure the defendants were not further disadvantaged by having less time to review the plaintiffs' evidence and proposed amended commercial list statement, they agreed to the draft form of orders attached to PFM's email dated 26 October 2022.
On 3 November 2022, Ball J made orders by consent vacating the August 2022 orders in part and directing the plaintiffs to serve any lay and expert evidence by 9 November 2022 and to serve a proposed amended commercial list statement by 30 November 2022, with the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file it by 24 February 2023 (November 2022 orders).
The plaintiffs did not serve their evidence by the 9 November 2022 deadline fixed by the November 2022 orders.
On 10 November 2022 at 1:51pm, PFM served the expert report of Peter Badala via email to HSF. That email advised that the balance of the plaintiffs' expert and lay evidence was currently being finalised and would be served upon its completion.
On 10 November 2022 at 2:47pm, HSF sent an email to PFM which confirmed receipt of Mr Badala's report and requested that PFM advise when the remaining evidence would be served. No response to this request was provided.
On 17 November 2022, HSF sent an email to PFM requesting an explanation for the further delay in serving the remainder of the plaintiff's evidence and confirmation that the plaintiffs would serve their proposed amended commercial list statement by 30 November 2022 in accordance with the November 2022 orders.
On 18 November 2022, PFM sent an email to HSF serving two further expert reports of Owain Stone and Professor Mark Zmijewski respectively and stating that the plaintiffs had one remaining piece of lay witness evidence to serve which would occur as soon as possible the following week.
On 22 November 2022, PFM sent an email to HSF stating that they expected to serve the plaintiffs' final lay witness statement by 25 November 2022 and were working towards serving the proposed amended commercial list statement by 30 November 2022.
On 25 November 2022, PFM sent an email to HSF attaching by way of service one lay witness affidavit of Martin Fletcher.
On 28 November 2022, HSF sent an email to PFM requesting confirmation that all of the plaintiffs' evidence in chief had been served and that the plaintiffs would serve the proposed commercial list statement by 30 November 2022.
On 30 November 2022, PFM sent an email to HSF which indicated that the plaintiffs had served the totality of their evidence in chief but regrettably would not be able serve the proposed amended commercial list statement until 21 December 2022, due in part to counsel availability.
On 1 December 2022, HSF sent a letter by email to PFM stating that it was the defendants' view that the court should be made aware of the status of the matter and the plaintiffs' repeated failure to meet court-ordered deadlines. HSF also said that the defendants would exercise their liberty to apply and seek to relist the matter for directions on 9 December 2022.
On 2 December 2022, HSF sent an email to the court requesting that the matter be listed for directions on 9 December 2022.
On 9 December 2022, on the application of the plaintiffs, Ball J made an order extending the time for the plaintiffs to serve a proposed amended commercial list statement to 21 December 2022 (December 2022 orders). During that hearing, Ball J informed counsel for the plaintiffs: … if the document is not served by then, your client should understand that they run a real risk for leave to file the amended document will be refused because of the lateness.
The plaintiffs did not serve a complete version of the proposed amended commercial list statement by the 21 December 2022 deadline fixed by the December 2022 orders. Instead, PFM sent an email to HSF which attached an incomplete version of the proposed amended commercial list statement (first proposed ACLS). The first proposed ACLS did not include a document identified as annexure A which was repeatedly referred to in it. In the email, PFM stated that they expected to be able to provide the document identified as annexure A in the week commencing 9 January 2023.
On 22 December 2022, HSF sent a letter by email to PFM noting that the first proposed ACLS appeared to be materially incomplete and reserving the defendants' rights, including their right to oppose leave being granted to the plaintiffs to file the first proposed ACLS.
The plaintiffs did not provide the defendants with a copy of annexure A to the first proposed ACLS in the week commencing 9 January 2023.
On 17 January 2023, HSF sent an email to PFM requesting that a complete copy of the first proposed ACLS, including annexure A, be provided immediately and reserving the defendants' rights, including to relist the matter and oppose leave being granted to the plaintiffs to file an amended pleading.
On 18 January 2023, PFM sent an email to HSF which attached a revised copy of the first proposed ACLS and a proposed amended summons. The revised first proposed ACLS included annexure A and further additional amendments within it, said by PFM to be entirely non-substantive in nature (second proposed ACLS). Annexure A was a 280-page document comprising over 350 paragraphs.
On 26 January 2023, HSF sent a letter dated 25 January 2023 by email to PFM which enclosed proposed draft orders. In the letter, HSF requested an explanation for the delay in providing the second proposed ACLS and sought an extension to the time for the defendants to indicate whether they consented to or opposed leave being granted to the plaintiffs to file the second proposed ACLS.
On 1 February 2023, PFM sent a letter to HSF stating that the plaintiffs consented to the orders proposed in HSF's letter of 25 January 2023.
On 2 February 2023, HSF sent an email to the court in agreed terms with a copy of proposed consent orders.
On 3 February 2023, the court sent an email to the parties confirming that the proposed orders had been made in chambers. Those orders vacated the November 2022 orders in part and ordered the defendants to confirm in writing to the plaintiffs whether they consented to or opposed leave being granted to the plaintiffs to file the second proposed ACLS by 31 March 2023 (February 2023 orders).
On 13 March 2023, HSF sent a letter by email to PFM raising particular issues, including seeking clarification of a number of matters in the second proposed ACLS.
By letter dated 17 March 2023, PFM provided responses to a number of the defendants' requests for clarification, including an indication that the plaintiffs could provide by 29 March 2023 an amended proposed ACLS which identified the paragraphs of annexure A relied upon.
On 23 March 2023, HSF sent an email to PFM stating that any further suggested amendments to the second proposed ACLS be made after 31 March 2023, being the date by which the defendants were required to confirm their position in accordance with the February 2023 orders.
On 29 March 2023, PFM sent an email to HSF attaching a further revised version of the second proposed ACLS (third proposed ACLS) which addressed a number of matters that had been raised in HSF's letter of 13 March 2023.
On 31 March 2023, in accordance with the February 2023 orders, HSF sent a letter by email to PFM in which it stated that the defendants opposed leave being granted to the plaintiffs to file the second proposed ACLS or the third proposed ACLS and set out in detail the deficiencies in those documents.
On 11 April 2023, PFM sent a letter by email to HSF stating that the plaintiffs would be prepared to draft a further revised pleading and proposed a timetable for the hearing of the plaintiffs' application for leave to amend the CLS.
On 12 April 2023, HSF sent an email to PFM with attached proposed consent orders making amendments to the plaintiffs' proposed timetable for the hearing of their application for leave to amend the CLS.
On 13 April 2023, by consent, the court made orders fixing a timetable for the hearing of the plaintiff's application for leave to amend the CLS.
On 26 April 2023, PFM sent an email to HSF attaching the notice of motion (which had been filed that day) and a supporting affidavit to which was annexed a proposed amended consolidated summons and a further revised version of the third proposed ACLS (fourth proposed ACLS) that the plaintiffs were seeking leave to file. The fourth proposed ACLS contained a significant number of substantive changes additional to those which were contained in the third proposed ACLS.
On 2 May 2023, PFM sent a letter by email to HSF referring to the fourth proposed ACLS which they stated had been prepared to address at least some of the defendants' criticisms of previous iterations of its list statement. The letter also stated that its purpose was to summarise the main changes that had been made in the fourth proposed ACLS.
On 26 May 2023, the plaintiffs' application for leave to amend the CLS came before Stevenson J for its first return. Stevenson J made orders listing the application for hearing on 14 June 2023 and requiring the parties to confer and agree on a timetable for the production of a Redfern Schedule of objections and responses.
On 30 May 2023, PFM and HSF agreed on a timetable for the exchange and filing of the Redfern Schedule.
On 2 June 2023, HSF provided PFM with the defendants' objections for the Redfern Schedule.
On 9 June 2023, HSF received an email from PFM which attached the Redfern Schedule with the plaintiffs' responses to the defendants' objections and a further proposed amended commercial list statement (fifth proposed ACLS).
Following correspondence between the parties on 13 June 2023, the hearing of the plaintiffs' application for leave to amend the CLS was adjourned to 21 June 2023 to allow time for the defendants to consider the fifth proposed ACLS.
The parties' counsel then conferred in relation to the fifth proposed ACLS.
On 19 June 2023, PFM sent an email to HSF which attached a further proposed amended commercial list statement (sixth proposed ACLS), said to contain a further set of amendments to address the defendants' concerns in full, and proposed orders in relation to the filing of the sixth proposed ACLS and the filing of the parties' evidence.
On 20 June 2023, PFM wrote to the Associate to Stevenson J with the consent of the defendants indicating that the parties had resolved the matters the subject of the Redfern Schedule and attaching proposed consent orders.
On 21 June 2023, Stevenson J made orders vacating the 21 June 2023 listing and granting leave to the plaintiffs to file and serve the amended summons in the form proposed on 26 April 2023 and the sixth proposed ACLS.
On 26 June 2023, PFM provided HSF with the amended summons and amended commercial list statement (ACLS).
On 27 June 2023, the plaintiffs filed the amended summons and the ACLS, which is the latest and current iteration of their claims against the defendants.

[8]

Service of the defendants' lay and expert evidence

On 30 June 2023, Ball J made the following orders (June 2023 orders): 1. the defendants file and serve their amended commercial list response to the ACLS by 8 September 2023; 2. the defendants file and serve any lay evidence by 15 December 2023; 3. the defendants file and serve any expert evidence by 16 February 2024; and 4. the plaintiffs file and serve any lay and expert evidence in reply by 18 May 2024.
On 8 September 2023, in accordance with the June 2023 orders, HSF sent an email to PFM attaching by way of service the defendants' amended commercial list response (ACLR).
On 12 December 2023, HSF sent an email to PFM advising that the defendants were not in a position to serve their lay evidence by 15 December 2023 in accordance with the June 2023 orders and stating that they required a short extension of one week to 22 December 2023. In the email, HSF noted that the defendants' lay witnesses had overseas travel and/or work commitments which impacted the finalisation of their statements, that the majority of the defendants' lay witnesses were no longer employed by the defendants and as such not within the defendants' control, and that managing availability at that time of year was particularly difficult.
On 14 December 2023 at 10:20am, PFM sent an email to HSF noting that the reasons provided in the HSF email of 12 December 2023 did not appear to apply to the entirety of the defendants' lay witness evidence, and the plaintiffs therefore considered it appropriate for the defendants to serve any lay witness statements which had been sworn/affirmed by 15 December 2023 by that day, with the balance of the defendants' lay witness evidence to be provided by 22 December 2023. On that basis, the plaintiffs agreed not to seek variation orders in respect of the provision of the defendants' lay evidence.
On 14 December 2023 at 6:20pm, HSF sent an email to PFM stating that the position in HSF's email of 12 December 2023 applied to the entirety of the defendants' lay evidence and that the defendants would not be in a position to file any lay witness statements by 15 December 2023. HSF also stated that the defendants were content to file and serve lay witness statements as they were finalised on or before 22 December 2023 and they anticipated that the majority of the evidence would be filed and served on 22 December 2023.
On 21 December 2023, HSF sent an email to MBL (who by that time had become the solicitors for the plaintiffs) serving the affidavits of Michelle Letton, Tarun Gupta, David Craig and Ashley Mason and confirming that the defendants anticipated completing service of their lay evidence on 22 December 2023.
On 22 December 2023, HSF emailed MBL serving the affidavits of Craig Laslett, Stephen McCann and Sylwia Rutkowska.
On 6 February 2024, HSF sent a letter by email to MBL stating that the defendants would not be in a position to serve their expert evidence by 16 February 2024 in accordance with the June 2023 orders and would require a short extension to 8 March 2024. HSF stated that greater time than was anticipated as being necessary at the time the June 2023 orders were made would be needed to progress all of the defendants' expert evidence, noting that some experts had, and were continuing to have, availability issues. HSF also said that they were not in a position to identify the areas of expertise nor the experts to be advanced by the defendants and they did not anticipate being in a position to file expert evidence incrementally prior to 8 March 2024.
On 7 February 2024, MBL sent a letter by email to HSF requesting a more complete explanation for the cause of the delay in the service of the expert evidence so that the plaintiffs could properly consider the defendants' request for the proposed extension.
On 13 February 2024, HSF sent an email to MBL stating that they anticipated leading evidence from each of: a construction expert in answer to Mr Badala's evidence; an accounting expert in answer to Mr Stone's evidence; and an economist in answer to Professor Zmijewski's evidence. HSF also said that a final decision on whether that suite of evidence represented the totality of the defendants' expert evidence had not yet been made.
On 8 March 2024, HSF sent an email to MBL serving the expert reports of Dawna Wright, Dr Sanjay Unni and Mozammel Ali and the second affidavit of Ashley Mason. HSF stated that the defendants intended to file one additional report to complete their expert evidence, being the report of a construction expert in response to Mr Badala's report, which would be served no later than 15 March 2024. HSF concluded by saying that the defendants would support a commensurate extension of time for the plaintiffs' reply evidence to cure any prejudice arising from the short delay.
On 13 March 2024, MBL sent a letter to HSF stating that they were disappointed regarding the ongoing delay in serving the entirety of the defendants' expert evidence and that the plaintiffs reserved their position with respect to the delay and the timing for the provision of the plaintiffs' evidence in reply. MBL requested copies of all documents relied upon or referenced in the defendants' expert evidence, all underlying workings and calculations for the figures, tables and exhibits to each of the expert reports, and separate indices of all documents provided to each of the defendants' expert witnesses.
On 13 March 2024 at 8:07pm, HSF sent an email to MBL confirming receipt of their letter, noting that they had already agreed to accommodate a commensurate extension of time for provision of any reply evidence by the plaintiffs (not due until 18 May 2024) and that the plaintiffs did not point to any prejudice in the delay in the service of defendants' expert evidence.
On 13 March 2024 at 10:48pm, HSF sent a further email to MBL with a link to the expert report of David Gibson and the appendices to it, by way of service.
On 26 March 2024, HSF sent a letter by email to MBL responding to MBL's email of 13 March 2024, including by stating that all documents relied on or referenced in Mr Gibson's report: 1. had previously been produced by the parties and were referred to by their document IDs in Mr Gibson's report; or 2. were included either as appendices to Mr Gibson's report or as appendices to the report of Mr Badala.

[9]

Failure of the plaintiffs to serve reply evidence

The parties then engaged in further correspondence concerning the provision of further information by the defendants in relation to their experts' reports.
As part of this correspondence, on 16 May 2024, HSF sent a letter by email to MBL which, amongst other things, noted that the plaintiffs' reply evidence was due to be filed on 18 May 2024 and referred to the HSF letter of 8 March 2024 in which they had indicated that they would support an extension of the deadline for service of the plaintiffs' reply expert evidence commensurate with the additional time taken by the defendants to complete their expert evidence, being three weeks and five days. HSF concluded by asking the plaintiffs to confirm whether they intended to take this additional time and, if so, that the plaintiffs' reply expert evidence would be filed by 13 June 2024.
Attached to HSF's email of 16 May 2024 was an addendum to the report of Dr Sanjay Unni dated 13 May 2024, which corrected a document referred to in a footnote in the earlier report of Dr Unni.
No response to HSF's letter of 16 May 2024 was received by HSF.
The plaintiffs did not serve any lay or expert evidence in reply by the 18 May 2024 deadline fixed by the June 2023 orders.
On 22 May 2024, HSF sent an email to MBL referring to HSF's letter of 16 May 2024, noting that they had not received any response to it and stating that HSF assumed that the plaintiffs intended to take additional time commensurate with the additional time taken by the defendants to complete their expert evidence. HSF sought confirmation that the plaintiffs' reply evidence would be filed and served by 13 June 2024.
No response was received to HSF's email of 22 May 2024.
On 29 May 2024, HSF sent an email to MBL noting that no response had been received to HSF's letter of 16 May 2024 or HSF's email of 22 May 2024 and stating that, absent a response, the defendants had organised their resources to receive the plaintiffs' reply evidence, if any, by 13 June 2024.
On 13 June 2024, being the date that the defendants had indicated they expected to receive the plaintiffs' reply evidence, MBL sent an email to HSF stating: The plaintiffs will not be filing and serving their reply evidence today. We will write to you shortly regarding a proposed timetable.
The plaintiffs have not provided any proposed timetable for the service of their reply evidence.

[10]

Defendants' application for determination of a separate question regarding class closure

On 30 August 2023, the defendants made an application seeking that the Court of Appeal of this court determine as a separate question this court's power to approve a notice to group members containing a notation that on settlement the parties would seek an order that any group members who have not registered by a specified date would not be permitted to participate in that settlement.
On 13 September 2023, Ball J referred the separate question to the Court of Appeal in the following form: Notwithstanding the decision in Wigmans v AMP Ltd (2020) 102 NSWLR 199 and having regard to the decision in Parkin v Boral Ltd (2022) 291 FCR 116, does the Supreme Court of NSW have power pursuant to sections 175(1), 175(5) and 176(1) of the Civil Procedure Act 2005 (NSW) (CPA) or otherwise to approve a notice to Group Members of the right to register to participate in any settlement of the proceedings or opt out of the proceedings for the purposes of CPA section 162 containing the following notation: Upon any settlement of this proceeding the parties, alternatively, the defendant, will seek an order, which, if made, has the effect of providing that any Group Member who by a registration date: (i) has not registered; or (ii) has not opted out in accordance with the orders made by the Court, will remain a Group Member for all purposes of this proceeding but shall not, without leave of the Court, be permitted to seek any benefit pursuant to any settlement (subject to Court approval) of this proceeding that occurs before final judgment.
On 28 November 2023, a five-member bench of the Court of Appeal heard the defendants' application, which was not opposed by the plaintiffs.
On 17 April 2024, the Court of Appeal delivered judgment answering the separate question in the negative: David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd (2023) 114 NSWLR 81; [2024] NSWCA 83.
On 14 May 2024, the defendants filed an application for special leave to appeal to the High Court of Australia, including that the application be progressed and determined with expedition.
On 28 May 2024, the plaintiffs filed a response to the application for special leave indicating that they agreed with the defendants' position in relation to expedition and that they agreed special leave should be granted.
On 8 August 2024, the High Court granted special leave to appeal on the condition that the defendants be responsible for the appointment and costs of an appropriate contradictor: Lendlease Corporation Limited v David William Pallas and Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund [2024] HCASL 191.

[11]

Plaintiffs' requests for production of further documents and correspondence between the parties

On 21 May 2024, MBL sent a letter by email to HSF stating that in the course of preparing their expert evidence in reply, the plaintiffs' experts had identified a deficiency in the defendants' discovery, referring to the fact that the defendants had discovered a number of PDF copies of programs for each of the Projects which lose key context held within the native versions of those programs. MBL stated that: Section 6.2(b) of the Electronic Exchange Protocol, as agreed between the parties and dated 26 August 2020 (Protocol), requires that Non-Standard Files (as defined in the Protocol) are to be provided in their native electronic format or if not possible, as agreed between the parties. In accordance with the definitions in the Protocol, a Non-Standard File includes electronic files which cannot be converted to Adobe PDF without losing contextual meaning.
In the letter, MBL requested that the following program documents be produced in the native file format (e.g. as a .xer file or in any other native file format capable of being reviewed in a P6 platform), without delay: (a) the programs attached to each of the original contracts for the Projects; and (b) each version of the programs as amended from 1 September 2017 through to 8 November 2018; (Requested Programs).
An ".xer file" is a particular kind of file used to prepare programs for construction projects and is required to be opened using specialist software such as Primavera.
Attached to the letter was a schedule said to comprise a non-exhaustive list of the programs previously produced to the plaintiffs in PDF format. MBL stated that, for the avoidance of doubt, to the extent that any of the requested programs had not yet been discovered in PDF form, they requested the native files of those programs on the basis that the Requested Programs are relevant to a fact in issue in the proceedings and the plaintiffs' experts are required to interrogate those programs to reply to the defendants' expert evidence.
MBL concluded the letter by requesting that the Requested Programs be provided to them by 28 May 2024 and saying that any delay in the provision of the Requested Programs may result in a delay to the plaintiffs' reply expert evidence.
On 28 May 2024, HSF sent a letter by email to MBL rejecting the assertion of a deficiency in the defendants' discovery and setting out the background to the discovery given in accordance with requirements in the Original Discovery Orders and the Further Discovery Orders, including the documents listed in the schedule to the MBL letter of 21 May 2024. HSF also gave the following further responses: 1. The defendants had produced program documents where they fell within the Original Discovery Orders and the Further Discovery Orders. Those documents had been produced in their original form and had not been subjected to any process to convert them to PDF as part of the discovery. 2. Neither the Original Discovery Orders nor the Further Discovery Orders required the defendants to undertake searches to locate any other versions of those documents which may or may not have existed in a different format. 3. At least 18 .xer files had previously been provided to the plaintiffs in their original .xer format which fell within the discovery categories, and where placeholder PDF documents had instead been provided (due to checks for privileged or sensitive information within their contents being conducted during the review stage), versions of those documents in .xer format would now be provided. 4. Neither the Original Discovery Orders nor the Further Discovery Orders required the defendants to produce project programs as a distinct category of documents (in .xer format or otherwise), and that being so, the plaintiffs' request in MBL's letter of 21 May 2024 amounted to a request for further discovery four years after the Original Discovery Orders and three years after the Further Discovery Orders had been made, long after the close of pleadings, more than nine weeks after the defendants filed their expert evidence and near to the deadline for the plaintiffs' reply evidence. 5. The defendants did not agree that they should be required to undertake searches to produce documents in response to a new category of discovery, rejected the attempt to characterise the request as arising from an alleged deficiency in the defendants' discovery and rejected the suggestion that this provided any basis for the delay in serving the plaintiffs' evidence in reply. 6. Any attempt to introduce evidence that is not properly in reply would be opposed by the defendants.
On 28 May 2024 at 7:33pm, HSF sent a secure file transfer link to MBL which enclosed .xer documents as referred to in their letter of 28 May 2024.
On 7 June 2024, MBL sent a letter by email to HSF asserting that the Requested Programs were relevant to an issue in dispute in the proceedings and necessary for the plaintiffs' experts to progress their expert evidence. MBL stated that the Requested Programs were required to enable them to address certain assertions made by the defendants' construction expert, David Gibson, in response to the primary construction expert evidence prepared by Mr Badala that in respect of: 1. the GUN and KSD Projects, Lendlease was predicting the Completion Dates at each Assessment Month based on information known at that time and Mr Badala should have used the Lendlease reported Completion Date at each Assessment Month (for example, [4.5.5] and [4.5.8]); and 2. the NCX Project, Mr Badala's approach to his Integrated R&O Adjustment failed to take into account LLBJV's detailed approach to the assessment of the risks and opportunities for that project. (Assertions)
MBL observed that the Assertions went directly to the plaintiffs' allegations in the ACLS, central to the proceedings and denied by the defendants, that the defendants were aware that additional provisions were required to be taken in respect of the Projects and a corresponding reduction in recorded profits was required.
In their letter of 7 June 2024, MBL said that the defendants' evidence does not explain how the defendants: 1. assessed the Completion Dates for the GUN and KSD Projects as at each Assessment Month based on the relevant information known at each of those times; or 2. how the LLBJV assessed in detail the risks and opportunities for the NCX Project.
MBL further stated that: … the Requested Programs are required for the plaintiffs to address the Assertions, which they are entitled to do. We are instructed that the plaintiffs' expert evidence in reply cannot efficiently be progressed until those documents are produced. Further, we are instructed that if [the defendants] do not discover the Requested Programs, the plaintiffs' experts will likely be required to conduct a more laborious, costly and time intensive review process, which importantly for [the defendants], will result in a delay of about 8 weeks in the plaintiffs finalising their expert evidence in reply (from the date the plaintiffs would otherwise have been able to file and serve their evidence).
MBL concluded their letter by pressing for the production of the Requested Programs by 14 June 2024 to the extent those documents had not been provided to the plaintiffs to facilitate the efficient conduct of the proceedings, and indicating that if production was not forthcoming, the plaintiffs would issue a notice to produce.
On 14 June 2024, HSF sent an email to MBL stating that having regard to the issues raised in MBL's letter of 7 June 2024 and the timing of the request relative to the status of the proceedings, they would not be able to provide a response within four business days as requested. HSF said that they would provide a response the following week.
On 21 June 2024, HSF sent a lengthy letter by email to MBL providing a substantive response to MBL's letter of 7 June 2024, which HSF described as requesting that the defendants provide: … discovery of an additional category of documents, being all project programs for each of the NCX, GUN and KSD [Projects] at the time of contract execution and throughout the period 1 September 2017 to 8 November 2018 …
In summary, HSF made the following points: 1. The requested documents fell outside the categories of documents which the defendants were required to discover pursuant to the Original Discovery Orders and the Further Discovery Orders. 2. The bulk of the defendants' discovery was produced in 2020 (more than four years ago), the defendants' discovery verification affidavit was provided on 15 October 2021 (more than two and half years ago) and an updated affidavit was provided on 9 March 2022 (more than two years ago). 3. The plaintiffs' expert evidence was served in November 2022, with the primary allegations of the plaintiffs based on the opinions of Mr Badala who did not refer to the need for the Requested Documents in advancing his opinion nor make any reference to the Requested Documents as being relevant to the assumptions he made or the analysis he advanced. 4. The plaintiff substantially amended the pleading based on Mr Badala's report, with the ACLS filed on 27 June 2023 (a year ago). 5. The defendants served substantial lay and expert evidence (seven lay affidavits in December 2023, one additional lay affidavit in March 2024 and four expert reports in March 2024) in response to the new allegations pleaded in the ACLS and in response to the evidence of the plaintiffs, including that of Mr Badala. 6. The defendants do not accept that the Requested Programs are required for the plaintiffs to address the Assertions from the report of Mr Gibson for the following reasons: 1. It was the plaintiffs' evidence in Mr Badala's report served in November 2022 which put the GUN and KSD Project completion dates in issue, not Mr Gibson's report in response, with Mr Badala indicating that he assessed what the likely completion date for the project was and used that opinion to then formulate his opinion on the indirect costs which he said should have been forecasted as at the relevant assessment month. 2. The plaintiffs prepared and served their evidence in chief, including Mr Badala's opinions on the KSD and GUN Project forecasted completion dates, without requesting the Requested Programs and therefore the plaintiffs and their experts formed the view that sufficient materials were available to advance those opinions. 3. The completion dates forecast by the defendants for the GUN and KSD Projects are apparent on the face of the project in delivery reports which were provided to and relied upon by Mr Badala in his report and the plaintiffs have not provided any cogent explanation as to why native-format .xer files would provide any relevant additional information necessary to respond to Mr Gibson's report. 4. In relation to the NCX Project, the analysis conducted by Mr Badala, and responded to by Mr Gibson, focuses on various parts of certain risks and opportunities documents and the plaintiffs have failed to explain why detailed programming information in the native .xer program files are relevant to understanding how the LLBJV assessed the risks and opportunities for the NCX Project, and how the Requested Programs are relevant to any response to Mr Gibson's opinions on the NCX Project. 5. There is no basis for any suggestion that in order to understand the opinions of Mr Gibson it is necessary to have regard to the Requested Programs, in circumstances where Mr Gibson was briefed with the same documents as Mr Badala. Mr Gibson made clear in his report that his opinion was that Mr Badala "should have used Lendlease's reported Completion Date at each Assessment Month" as it was based on the project teams' assessment based on the information known at the time. 6. The plaintiffs are already in possession of all the materials used by Mr Gibson to prepare his report and should be in a position to reply. 1. The request for the Requested Programs is not a request for specific documents but a request for further discovery. The production of the requested documents, assuming they are available, is likely to be a time-intensive and costly exercise for the defendants. The documents were, in some cases, created more than six years ago; they relate to three projects that were completed several years ago; the Engineering Business was sold in 2020 and most personnel are no longer employed by Lendlease; the NCX Project document management platforms were managed by Lendlease's joint venture partner and are difficult to access; and the requested files are in .xer format which requires specialist software to access and review. 2. The proceedings were commenced more than five years ago, the defendants have been put to very significant expense in defending them and it is well past the time when the plaintiffs should be requesting further discovery. The plaintiffs should be pursuing the alternative course they have identified in MBL's letter of 7 June 2024, where instead of the Requested Programs being discovered, their own experts should undertake the review process at their own expense. The defendants would resist any notice to produce that is issued. 3. The defendants have significant concerns about the nature of the evidence in reply that the plaintiffs intend to serve. The entirety of the plaintiffs' pleaded case is referable to the opinions of Mr Badala on the alleged project losses and Mr Badala's opinions form the basis of the assumptions given to all of the plaintiffs' other experts and provide the sole basis for the additional provisions that the plaintiffs allege the defendants should have disclosed. The Requested Programs are detailed programming files and Mr Badala has not indicated that he has any specialised knowledge, training or experience in respect of delay or programming issues so it is unclear why they would be necessary to inform any admissible reply evidence from Mr Badala. The defendants' lay and expert evidence responded to Mr Badala's opinions. To the extent that Mr Badala seeks to address, purportedly in reply, new matters not previously raised in the plaintiffs' case in chief or new matters not arising in response to the defendants' evidence, the defendants will raise issues of prejudice with the court and will oppose any attempt by the plaintiffs to serve any evidence in reply which goes beyond that which the plaintiffs have been ordered to serve. 4. MBL indicated that in the absence of the Requested Programs, the plaintiffs would require an additional eight weeks to serve their evidence in reply, without any explanation. The defendants would agree to allow the plaintiffs an extension until 31 July 2024 to serve their reply evidence, but any evidence in reply to the reports of Ms Wright, Mr Unni and Mr Ali should be able to be served immediately given that the plaintiffs have only indicated that the Requested Programs are relevant to the response to Mr Gibson's report.
HSF also noted that the defendants would resist any notice to produce issued by the plaintiffs and oppose any attempt by the plaintiffs to serve evidence exceeding evidence in reply. They attached to their letter draft consent orders giving effect to the proposed extension of the deadline for service of expert evidence in reply from Mr Badala to 31 July 2024.

[12]

The Original NtP

On 24 June 2024, MBL sent an email to HSF attaching by way of service the Original NtP. The Original NtP required production of the following four categories of documents by 1 July 2024: 1. The native file of the programs attached to each of the original contracts or deeds for the NCX, GUN and KSD Projects. 2. The native file for each version of the programs for the KSD Project as amended from 1 September 2017 through to 8 November 2018. 3. The native file for each version of the programs for the NCX Project as amended from 1 April 2017 through to 8 November 2018 (including draft versions of the programs for each month to the extent that a final version was not produced during that month). 4. The native file for each version of the programs for the GUN Project as amended on or around 31 January 2018 and 28 February 2018.
On 26 June 2024, HSF sent a letter by email to MBL concerning the Original NtP and referring to HSF's letter of 21 June 2024 in which they had outlined the defendants' concerns in relation to the request. HSF noted that the plaintiffs had failed to address these concerns. HSF also stated that the notice seeking production within seven days was unreasonable given the scope of the notice and that r 21.11(2)(b) of the UCPR stipulates that a party should be given at least 14 days to respond to any notice to produce. HSF stated that the defendants required a response to HSF's letter of 21 June 2024 by 28 June 2024 so they could consider their response to the Original NtP. HSF also asked for the time for production under the Original NtP to be extended to 8 July 2024.
On 28 June 2024, MBL sent a letter by email to HSF concerning the Original NtP. MBL said that in their letter of 21 May 2024 they had requested production of the Requested Programs and whilst there had been some changes to the scope of that request, the documents were of the same nature as those identified in their original request and that in their letter they had explained the relevance of the requested documents to the issues in dispute and had assumed that the relevance was obvious.
MBL explained the relevance of and need for the Requested Programs in this way: 1. Mr Gibson's report makes several statements to the effect that the defendants assessed the Projects with information known at the time and carried out detailed reviews of the Projects, which they defined as the Assertions. To make the Assertions, Mr Gibson relied on an assumption provided to him and an inference he had made from the documents briefed to him. The extent to which the Assertions and assumptions and inferences underlying them are substantiated is in contest. 2. The Assertions, and the assumption and inferences upon which Mr Gibson relies to make the Assertions, are relevant to several issues in dispute, including: 1. whether the defendants were aware that additional provisions were required to be taken in respect of the Projects and a corresponding reduction in recorded profits was required; and 2. whether the defendants had reasonable grounds to make the representations alleged by the plaintiffs. 1. The Requested Programs are relevant to the Assertions and the facts in issue as they provide information as to how the projects were assessed with information known at the time, which is consistent with the reference to project programs within the lay evidence. The plaintiffs require the Requested Programs to respond to Mr Gibson's report. 2. MBL do not consider it useful to traverse all matters raised in HSF's letters of 21 and 26 June 2024. 3. The PDF versions of the project programs produced by the defendants are not a satisfactory substitute for the native programs as they do not contain information which is fundamental to reviewing the status of a project and amending project programs. That information is necessary for the plaintiffs' experts to respond to the assertions in Mr Gibson's report and the alternative course referred to in HSF's letter of 21 June 2024 is not practical. 4. As the defendants resisted production of the documents which are necessary for the plaintiffs' experts to respond to Mr Gibson's report and the increasing delay to the production of the plaintiffs' reply evidence as a result of not receiving the Requested Programs, the plaintiffs were left with no choice but to serve the Original NtP as a matter of priority. 5. The majority of the documents referred to in the Original NtP were first requested on 21 May 2024 and their non-production is hindering the progress of the plaintiffs' expert evidence. Whilst the Engineering Business was sold by Lendlease in 2020, the defendants' discovery obligations commenced when the matter was filed in 2019 and the documents in the Original NtP are a confined set of documents that should be readily identifiable.
MBL said that the plaintiffs were willing to consent to extending the time for production under the Original NtP to 8 July 2024.
MBL concluded by saying that the matters contained in HSF's letter of 21 June 2024 concerning potential prejudice to the defendants caused by the plaintiffs seeking to adduce evidence exceeding evidence in reply were premature and were matters to be dealt with at a later time (if and when the relevant circumstances arose), that the plaintiffs would propose an alternative timetable for the provision of reply evidence at another time, and that there was no relevant prejudice to the defendants in that course as no dates for mediation or the trial had been fixed and the defendants had expressly stated that they would resist the fixing of such dates until after the application for special leave had been resolved.

[13]

Work and costs required to produce the documents sought in the Original NtP

Although some quibbles were raised by the plaintiffs, I accept the generally unchallenged extensive evidence of the defendants that considerable work is required to be undertaken to locate and produce the documents sought under the Original NtP for each of the four categories of documents sought, it is difficult to estimate the costs of undertaking that work and the costs of undertaking that work is likely to be at least in order of $500,000. That work is detailed as follows: 1. Category 1 seeks the native file of the programs attached to each of the original contracts or deeds for the NCX, GUN and KSD Projects. Category A6 of the Original Discovery Orders sought in relation to each of the Projects all signed contracts and variations between the defendants (and/or its subsidiaries) and the relevant clients and/or joint venture partners dated on or before 8 November 2018. Amongst the documents previously produced by the defendants to the plaintiffs on 9 October 2020 in response to the Original Discovery Orders were the Overall D&C Program attached at Exhibit F to the original NCX D&C Deed (as a PDF document) which was as part of the NCX Program Associated Note; and a copy of the Contract Program which appeared at Exhibit C to the original GUN D&C Deed (as a PDF document) which includes a "base case summary" program and a "base case detail" program. On 8 July 2024, after the issuance of the Original NtP, the defendants produced to the plaintiffs a copy of the program which appears in PDF form at Exhibit B to the original KSD project deed which is the entirety of that document. To comply with category 1 of the Original NtP, the defendants would need to carry out the following steps: 1. obtain access to the relevant project drive for each of the Projects; 2. examine the folder and file structure of the drive to identify any potentially responsive folders and files; 3. process the potentially responsive folders or files into the Relativity discovery review database for further review; 4. convert the potentially responsive files from native .xer format into PDF format or otherwise obtain access to the native .xer file format files in a form that allows them to be compared with the PDF contract versions; and 5. conduct a manual comparison exercise to verify potentially responsive .xer files as against the contractual PDF files previously produced. This would involve confirming that every individual activity (i.e. line within the Gantt chart) is identical to the programs contained within the contracts. By way of example, the GUN "base case detail" program contains over 5,000 line items within the program which would need to be compared to a potentially responsive .xer file. This exercise would potentially need to be undertaken for several files if the comparison exercise confirms that an identified .xer file is not the same as the programs contained within the contracts. 1. Category 2 seeks the native file for each version of the programs for the KSD Project as amended from 1 September 2017 through to 8 November 2018. As part of complying with the Original Discovery Orders, HSF on behalf of the defendants forensically collected a copy of the KSD Project drive in 2020. The volume of material on that drive was 6,700 GB or 6.7 TB. HSF processed a range of files and folders onto the Relativity database which incurred a one-off data charge for the 6.7 TB of data of approximately $134,000 and an on-going monthly charge of approximately $94,000. Those folders and files which had no relevance to the Original Discovery Orders or the Further Discovery Orders were not processed into the Relativity database at that time. The copy of the complete KSD Project drive that was collected in 2020 has been archived into a more cost-efficient form of "cold storage" where the data has been taken off HSF's live Amazon Web Services infrastructure with immediate access and been placed into a lower cost storage system with limited access. While the driver is in "cold storage" it is not in a form where HSF is able to access or otherwise view the files contained within that drive. In order to restore the KSD Project drive from "cold storage", the contents of the project drive would need to be restored onto a new external hard drive, taking up to two weeks. In order to produce documents in response to category 2 of the Original NtP, HSF would need to undergo the process of restoring the project drive from "cold storage" as a first step. At least one folder within the KSD Project drive may contain programs, that folder contains over 9,000 files and over 700 sub-folders and one potentially responsive sub-folder within that folder contains over 2,800 files as a subset of the 9,000 total files. To comply with category 2 of the Original NtP, the defendants would need to then carry out the following further steps: 1. identify one or more persons who worked on the KSD Project who has awareness of programming on the project, although the individual who previously assisted in identifying document repositories and folder locations to comply with the Original Discovery Orders in respect of the KSD Project is no longer employed by the defendants (or any of their subsidiaries); 2. interview that person(s) and ask them to identify the relevant folders which may contain documents which are responsive to category 2; 3. process the potentially responsive files into a discovery database for further review and provide those .xer files to a current employee of Lendlease who can open the files in Primavera (or another specialist software capable of opening .xer files) to verify whether those files meet the description of the documents set out in category 2. Alternatively, HSF would need to obtain access to the Primavera software and train a solicitor to review files using that software in order to review the files. Although it is not known how many files on the KSD Project drive are .xer files or how long any of the steps above will take, an estimate of those costs assuming that approximately 2,800 files will require review is in the order of $159,500. If the total number of documents for review was higher, the costs would increase considerably. The preparation of a verification affidavit would add additional costs. 1. Category 3 of the Original NtP seeks the native file for each version of the programs for the NCX Project as amended from 1 April 2017 through to 8 November 2018 (including draft versions of the programs for each month to the extent that a final version was not produced during that month). The NCX Project's financial and document management systems (including the central project drive) were hosted by Lendlease's joint venture partner, Bouygues. To comply with the Original Discovery Orders and the Further Discovery Orders, it was necessary for the defendants to liaise with Bouygues to obtain documents from specially identified folders and file paths within the Bouygues-hosted project drive. This involved numerous requests being made to Bouygues and their lawyers, which resulted in it taking more than a month to obtain access to collect those documents from Bouygues. At the time of obtaining access to those folders and documents in 2020, the NCX Project had not been completed and so it was necessary to obtain the assistance from Lendlease project personnel still engaged on it and familiar with the project documents who could identify specific folders and file paths by reference to the specific categories of the Original Discovery Orders. It is anticipated that obtaining access for the purpose of responding to category 3 of the Original NtP will be lengthier, more challenging and more costly that it was in 2020 because the NCX Project was completed in October 2020, nearly four years have passed since the process for responding to the Original Discovery Orders, that process was limited to collecting specific folders and file paths by reference to specific categories in the Original Discovery Orders and the two individuals who previously assisted HSF in that process are no longer employed by the defendants (or any of their subsidiaries). To comply with category 3 of the Original NtP, the defendants would need to carry out the following steps: 1. identify one or more persons who worked on the NCX Project with awareness of the programming on it; 2. interview that person (or those persons), should they be available for interview, and ask them to identify the document repositories that may contain the documents referred to in category 3. This may require multiple stages depending on whether or not that person (or those persons) still have access to the project drives in order to identify specific file path locations of potentially responsive folders and sub-folders within those repositories; 3. liaise with Bouygues to seek to obtain access to those repositories to collect potentially responsive files; 4. collect those potentially responsive files in a manner which preserves their metadata, which may require the assistance of Bouygues depending on the manner in which the defendants are permitted to access those repositories; 5. review those files to identify which files are of an .xer file type; 6. provide those .xer files to a current employee of Lendlease who can open the files in Primavera (or other specialist software capable of opening .xer files) to verify whether those files meet the description of the documents set out in category 3. It is likely that the employee would also be asked to provide HSF with a PDF version of the potentially responsive files so that a review can be conducted for any issues of confidentiality or other production issues. Alternatively, HSF would need to obtain access to the Primavera software and train a solicitor to review files using that software in order to review the files. Due to the number of variables and unknowns (such as how many folder locations may need to be inspected and collected, how many files are contained within those folders, what form those documents will be in, how they will be organised and how long it may take to obtain access to the Bouygues-hosted drive) it is not possible to give a firm indication of the length of the time and cost that may be required in order to produce documents in response to category 3. It is anticipated that it would take at least one month or even longer to obtain access to the Bouygues-hosted folders. 1. Category 4 of the Original NtP seeks the native file for each version of the programs for the GUN Project as amended on or around 31 January 2018 and 28 February 2018. To comply with the Original Discovery Orders and the Further Discovery Orders, HSF obtained a copy of the GUN project drive. Due to the volume of material on that drive of approximately 5,235 GB and the associated costs of processing and hosting data, the folders and files that did not relate to the Original Discovery Orders or the Further Discovery Orders were not processed within HSF's discovery database at that time but were placed in "cold storage" in the same way as the KSD Project drive described above. Similar steps as required for category 2 would need to be followed to identify the requested documents in category 4, being as follows: 1. restore the GUN project drive from "cold storage" which could take up to two weeks; 2. identify one or more persons who worked on the GUN Project who have an awareness of programming on the project. The individual who previously assisted in identifying document repositories and folder locations to comply with the Original Discovery Orders in respect of the GUN Project is no longer employed by the defendants (or any of their subsidiaries); 3. interview that person (or those persons), should they be available for interview, and asked them to identify the relevant folders which may contain documents which are responsive to category 4; 4. examine the drive to identify any potentially responsive folders and files. The GUN project drive contains a folder called "Program" which contains a total of 1,333 subfolders and 7,350 files and a total of 102 GB of data. Once the drive is accessible, the defendants will need to identify potentially relevant subfolders which may contain the requested files (which may be difficult to do in circumstances where the Engineering Business was sold almost four years ago and where those project employees who previously assisted with document identification are no longer employed by the defendants or any of their subsidiaries); 5. process the potentially responsive files into a discovery database for further review; and 6. provide those .xer files to a current employee of Lendlease who can open the files in Primavera (or another specialist software capable of opening .xer files) to verify whether those files meet the description of the documents set out in category 4. It is likely that the employee would also be asked to provide HSF with a PDF version of the potentially responsive files so that a review can be conducted for any issues of confidentiality or other production issues. Alternatively, HSF would need to obtain access to the Primavera software and train a solicitor to review files using that software in order to review the files. Given the time associated with restoring the GUN project drive, it is not yet known how many files within the GUN project drive may be .xer files, how the files within the GUN project drive may be organised within the "Program" folder, how many potentially responsive files may require review to determine whether or not they meet the description in category 4 of the Original NtP or whether it will be possible to identify the programs referred to category 4 of the Original NtP.

[16]

The Alternative NtPs

At the hearing of the defendants' notice of motion on 23 August 2024, I made orders directing the plaintiffs to file and serve an amended form of the Original NtP refining the categories of documents sought by 4pm on 30 August 2024.
On 30 August 2024, the plaintiffs served the Alternative NtPs.
The Detailed NtP seeks production of the following categories of documents: 1 The entire native file (in .xer format where available, otherwise in .mpp format or other native file format) of the following Kingsford Smith Drive project programs contained in the 'KSD project drive' (as referred to in, inter alia, paragraph [143]) of the affidavit of Melissa Jane Gladstone affirmed on 23 July 2024 (Gladstone Affidavit)): i. statused at or around 3 November 2015, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.029.013.2663 and LLC.012.001.0310 at pages .0656 and .0658; ii. statused at or around 1 September 2017, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Aug 2017 Monthly Update Doc No: KSD-3-LL-PPM-PG-000005 Rev 03" (LLC.033.012.3630); iii. statused at or around 1 October 2017, a copy (or part copy) of which has not been produced to the plaintiffs in PDF form but believe (based on the sequential numbering of the PDF titles available to the plaintiffs) to be the "D&C Program - Sep 2017 Monthly Update Doc No: KSD-3-LL-PPM-PG-000005 Rev 04"; iv. statused at or around 1 November 2017, a copy ( or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Oct 2017 Monthly Update Doc No: KSD-3-LL-PPM-PG-000005 Rev 05" (LLC.024.035.3031); v. statused at or around 1 December 2017, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Nov 2017 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 01" (LLC.024.035.3098); vi. statused at or around 1 January 2018, a copy (or part copy) of which has not been produced to the plaintiffs in PDF form but believe (based on the sequential numbering of the PDF titles available to the plaintiffs) to be the "D&C Program - Dec 2017 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 02"; vii. statused at or around 1 February 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Jan 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 03" (LLC.024.035.3127); viii. statused at or around 1 March 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Feb 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 04" (LLC.024.035.3180); ix. statused at or around 3 April 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Mar 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 05" (LLC.024.035.3228 and LLC.090.007.5834); x. statused at or around 1 May 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Apr 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 06" (LLC.024.035.3273); xi. statused at or around 1 June 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - May 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 07" (LLC.024.035.3316); xii. statused at or around 3 July 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Jun 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 08" (LLC.024.035.3359); xiii. statused at or around 6 August 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Jul 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 09" (LLC.024.035.3403); xiv. statused at or around 3 September 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Aug 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 10" (LLC.024.035.3448); xv. statused at or around 3 October 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Sep 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 11" (LLC.024.035.3492); and xvi. statused at or around 2 November 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "D&C Program - Oct 2018 Monthly Update Doc No: KSD-3-LL-PPM-PG-000006 Rev 12" (LLC.024.035.3538). 2 The entire native file (in .xer format where available, otherwise in .mpp format or other native file format) of the following Gateway Upgrade North project programs contained in the 'GUN project drive' (as referred to in, inter alia, paragraph [167] of the Gladstone Affidavit): i. statused at or around 27 February 2015, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.031.042.2961; ii. statused at or around 31 January 2018, which the plaintiffs believe to be titled "C02-37c Subsidiary contract program 31-Jan-18.xer" or similar (based on the sequential numbering of the .xer files available to the plaintiffs), a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "Gateway Upgrade North - Subsidiary Contract Program GUN-3-LL-PPM-PG-000002 rev 45" (LLC.031.008.6176); and iii. statused at or around 28 February 2018, which the plaintiffs believe to be titled "C02-38c Subsidiary contract program 28-Feb-18.xer" or similar (based on the sequential numbering of the .xer files available to the plaintiffs), a copy (or part copy) having been produced to the plaintiffs in PDF form in the document titled "Gateway Upgrade North - Subsidiary Contract Program GUN-3-LL-PPM-PG-000002 rev 46" (LLC.006.095.8613). 3 The entire native file (in .xer format where available, otherwise in .mpp format or other native file format) of the following final NorthConnex project programs (or draft program where a final program was not created), contained in the 'project drive' (as referred to in, inter alia, paragraphs [160] and [162] of the Gladstone Affidavit): i. as at or around 29 January 2015, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.055.001.7876; ii. programs 11 and 11.4, having been referenced in the document titled "North Connex Update to EY/KPMG dated December 2017" (LLC.003.053.8298 at p 9); iii. as at or around September 2017, program 11.6 having been referenced in the September 2017 Monthly Report (LLC.002.034.4825 at p 49); iv. as at or around October 2017, program 12 having been referenced in the October 2017 Monthly Report (LLC.071.001.6854 at p 51 ); v. as at or around 16 October 2017, program 12D having been referenced in the email from Damien Hertslet to Craig Laslett (LLC.002.010.5620); vi. as at or around November 2017, program 12.1 having been referenced in the November 2017 Monthly Report (LLC.002.009.8452 at p 51); vii. as at or around December 2017, program 12.2 having been referenced in the December 2017 Monthly Report ((LLC.002.009.1832 at p 51); viii. as at or around December 2017, the program provided to KPMG as requested by KPMG in the email from Mitchell Henry to James St Clair dated 11 December (LLC.006.043.0015); ix. as at or around January 2018, program 12.3 having been referenced in the January 2018 Monthly Report (LLC.008.006.2446 at p 47); x. as at or around February 2018, program 12.4 having been referenced in the February 2018 Monthly Report (LLC.071.002.5889 at pp 44-47); xi. as at or around 23 March 2018, program Rev 12.0 having been referenced in the document titled "Report Program Rev 12.pdf dated 23 March 2018" (LLC.006.001.4585); xii. existing on or around 19 to 24 April 2018, prior to SteerCo Meeting on 24 April 2018; xiii. as at or around May 2018, program 12.6 having been referenced in the May 2018 Monthly Report (LLC.002.008.4184 at pp 66 and 67); xiv. as at or around 7 June 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.003.034.2409 and LLC.003.034.2410; xv. as at or around 28 June 2018, each of the programs referenced as 'Project Delivery Programme', 'Gross Programme' and 'Client Programme' in the document titled "Project Program Rev 12.ppt" (LLC.006.031.7629); xvi. as at or around 29 June 2018, (or, alternatively, statused at 28 May 2018 if different to LLC.003.034.2411 or LLC.006.027.0255) having been referenced in the document titled "Report - Delivery Program - May 2018 Review.pdf' (LLC.006.032.3564); xvii. as at or around July 2018, having been referenced in the July 2018 JV Steerco Dashboard, NCX & M2I Projects (LLC.002.007.9185 at pp 3 and 4) and the July 2018 Engineering Steering Committee Project Status Report (LLC.002.008.0119 at pp 3-11); xviii. the native program referenced in and attached to the email from Andre Montauban to Damian Hertslet at 2.48pm on 25 July 2018 at LLC.006.026.9427; xix. the program provided to KPMG in July 2018 or August 2018 as alluded to in the emails between Damian Hertslet and Anthony Blackburne on 25 July 2018 and 14 November 2018 at LLC.006.026.9427 referenced immediately above (if different to the version referenced above); xx. as at or around 17 August 2018, having been referenced in the document titled "LLE Steerco Pack July 2018 Final NCX.pdf' (LLC.003.034.1249); xxi. as at or around 17 August 2018, having been referenced in the August 2018 JV Steerco Dashboard, NCX & M2I Projects (LLC.002.005.4526); xxii. as at or around 14 September 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.006.027.8193; xxiii. as at or around 17 September 2018, the program used to create the document produced to the plaintiffs in PDF form at LLC.006.027.8192; xxiv. as at or around 17 September 2018, the program used to create the document produced to the plaintiffs in PDF form at LLC.006.027.8194 if it differs from the native program used to create the document at LLC.006.027.8192; xxv. as at or around end September 2018, program 14 having been referenced in the document titled "Report - Delivery Program - November 2018 Review.pdf' (LLC.003.033.2910) (and referred to as the "Baseline - Rev 14.0" in LLC.006.026.8543); xxvi. as at or around October 2018, program 14.1 having been referenced in the October 2018 Monthly Report (LLC.006.026.8093 at p 32); xxvii. as at or around 25 October 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.006.002.3566 and LLC.006.002.3567; xxviii. as at or around November 2018, program 14.2 having been referenced in the November 2018 Monthly Report (LLC.091.013.3343 at p 33); xxix. as at or around 7 November 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.006.026.8543; and 4 The entire native file (in .mpp format where available) of the NorthConnex project program used to create the document produced to the plaintiffs in PDF form at LLC.006.027.8194, contained in the 'project drive' (as referred to in, inter alia, paragraphs [160] and [162] of the Gladstone Affidavit). 5 In respect of documents created or amended prior to the Relevant Period, the entire native file (in. xer format where available, otherwise in .mpp format or other native file format) of the following final NorthConnex project programs (or draft program where a final program was not created), contained in the 'project drive' (as referred to in, inter alia, paragraphs [160] and [162] of the Gladstone Affidavit): i. as at or around 30 April 2017; ii. as at or around 31 May 2017; iii. as at or around 30 June 2017; iv. as at or around 31 July 2017; v. as at or around 31 August 2017; and vi. as at or around 31 September 2017.
The Summary NtP seeks production of the following categories of documents: 1 The entire native file (in .xer format where available, otherwise in .mpp format or other native file format) of the following Kingsford Smith Drive project programs contained in the 'KSD project drive' (as referred to in, inter alia, paragraph [143] of the affidavit of Melissa Jane Gladstone affirmed on 23 July 2024 (Gladstone Affidavit) statused at or around the following dates: i. 3 November 2015, the program attached to the original KSD project contract or deed; ii. 1 September 2017; iii. 1 October 2017; iv. 1 November 2017; v. 1 December 2017; vi. 1 January 2018; vii. 1 February 2018; viii. 1 March 2018; ix. 3 April 2018; x. 1 May 2018; xi. 1 June 2018; xii. 3 July 2018; xiii. 6 August 2018; xiv. 3 September 2018; xv. 3 October 2018; and xvi. 2 November 2018. 2 The entire native file (in .xer format where available, otherwise in .mpp format or other native file format) of the following Gateway Upgrade North project programs contained in the 'GUN project drive' (as referred to in, inter alia, paragraph [167] of the Gladstone Affidavit) statused at or around the following dates: i. 27 February 2015 the program attached to the original GUN project contract or deed; ii. 31 January 2018; and iii. 28 February 2018. 3 The entire native file (in .xer format where available, otherwise in .mpp format or other native file format) of the following final NorthConnex project programs (or draft program where a final program was not created), contained in the 'project drive' (as referred to in, inter alia, paragraphs [160] and [162] of the Gladstone Affidavit): i. as at or around 29 January 2015, the program attached to the original NCX project contract or deed; ii. program Rev 11; iii. program Rev 11.4; iv. as at or around September 2017, program 11.6; v. as at or around October 2017, program 12.0; vi. as at or around October 2017, program 12D; vii. as at or around November 2017, program 12.1; viii. as at or around December 2017, program 12.2; ix. as at or around December 2017, the program provided to KPMG as requested by KPMG in the email from Mitchell Henry to James St Clair dated 11 December (LLC.006.043.0015); x. as at or around January 2018, program 12.3; xi. as at or around February 2018, program 12.4; xii. as at or around 23 March 2018, program Rev 12.0 having been referenced in the document titled "Report Program Rev 12.pdf dated 23 March 2018" (LLC.006.001.4585); xiii. the program existing as at or around April 2018; xiv. as at or around May 2018, program 12.6; xv. each version of the program (including all draft versions of the programs) from 1 June 2018 to 31 August 2018, including: a. the program existing as at or around 7 June 2018; b. as at or around 28 June 2018, each of the programs referenced as 'Project Delivery Programme', 'Gross Programme' and 'Client Programme' in the document titled "Project Program Rev 12.ppt" (LLC.006.031.7629); c. as at or around 29 June 2018, (or, alternatively, statused at 28 May 2018 if different to LLC.003.034.2411 or LLC.006.027.0255) having been referenced in the document titled "Report - Delivery Program - May 2018 Review.pdf" (LLC.006.032.3564); d. the native program referenced in and attached to the email from Andre Montauban to Damian Hertslet at 2.48pm on 25 July 2018 at LLC.006.026.9427; e. the program provided to KPMG in July 2018 or August 2018 as alluded to in the emails between Damian Hertslet and Anthony Blackburne on 25 July 2018 and 14 November 2018 at LLC.006.026.9427 referenced immediately above (if different to the version referenced above); f. as at or around 17 August 2018, as referenced in the document titled "LLE Steerco Pack July 2018 Final NCX.pdf" (LLC.003.034.1249); g. as at or around 17 August 2018, a copy (or part copy) having been referenced in the August 2018 JV Steerco Dashboard, NCX & M2I Projects (LLC.002.005.4526); xvi. as at or around 14 September 2018, a copy (or part copy) having been produced to the plaintiffs in PDF form at LLC.006.027.8193; xvii. as at or around 17 September 2018, the program used to create the document produced to the plaintiffs in PDF form at LLC.006.027.8192; xviii. as at or around 17 September 2018, the program used to create the document produced to the plaintiffs in PDF form at LLC.006.027.8194 if it differs from the native program used to create the document at LLC.006.027.8192; xix. as at or around end September 2018, program 14 having been referenced in the document produced to the plaintiffs in PDF form titled "Report - Delivery Program - November 2018 Review.pdf" (LLC.003.033.2910) (and referred to as the "Baseline - Rev 14.0" in LLC.006.026.8543); xx. as at or around October 2018, program 14.1; xxi. as at or around November 2018, program 14.2; 4 In respect of documents created or amended prior to the Relevant Period, the entire native file (in. xer format where available, otherwise in .mpp format or other native file format) of the following final NorthConnex project programs (or draft program where a final program was not created), contained in the 'project drive' (as referred to in, inter alia, paragraphs [160] and [162] of the Gladstone Affidavit): i. as at or around 30 April 2017; ii. as at or around 31 May 2017; iii. as at or around 30 June 2017; iv. as at or around 31 July 2017; v. as at or around 31 August 2017; and vi. as at or around 31 September 2017.

[18]

Summary of relevant allegations in the ACLS

As the defendants challenge the relevance of the documents sought in the Original NtP and the Alternative NtPs, it is necessary to consider the allegations which are made in the ACLS in generalised terms.
Part C of the ACLS ([23]-[40]) sets out various publications, announcements and disclosures made by the defendants at various dates (being 17 October 2017, 17 November 2017, 21 February 2018, 22 August 2018, 9 November 2018, 16 November 2018, 26 November 2018 and 25 February 2019) regarding their financial performance, with various statements said to have been made on each of those dates.
Part C1 of the ACLS ([40A]-[40AT]) contains a series of allegations as to the "true position" of the GUN Project, the KSD Project and the NCX Project on specified dates, many of which include the dates set out in Part C of the ACLS, with particular reference to the likely whole of life profit or loss (WOL P/L) for each of the Projects as assessed by the defendants compared to the actual likely WOL P/L calculated in the expert report of Mr Badala.
It is further alleged that by reason of the deficit between the WOL P/L as assessed by the defendants and the actual likely WOL P/L for the Projects, the defendants had inadequate provisions for the Projects and the Engineering Business ([40AM]) and other additional pre-tax provisions would need to be taken by the defendants, by reference to the calculations made in the report of Mr Badala and the report of Mr Stone ([40AN]-[40AR]).
It is then alleged that by reason of the inadequate provisions for the Projects and the Engineering Business, the defendants' financial results as published for the six months ended 31 December 2017 required an additional provision of $331.3 million for the Projects and a reduction in after-tax profits of $231.9 million and the defendants' financial results as published for the twelve months ended 30 June 2018 required an additional provision of $415.5 million for the Projects and a reduction in after-tax profits of $290.9 million ([40AS]-[40AT]).
From the basal allegations in Part C of the ACLS, the plaintiffs' claims are split between the allegations of misleading or deceptive conduct in Part D of the ACLS ([41]-[49K]) and the continuous disclosure contraventions in Part E of the ACLS ([49L]-[49AJ]).
In summary, in Part D of the ACLS it is alleged that the defendants engaged in misleading or deceptive conduct by making a series of representations on 17 November 2017, 21 February 2018 and 22 August 2018 to the market of investors and potential investors in their securities (Affected Market) regarding their financial performance and the adequacy of their provisions for which they had no reasonable grounds.
In summary, in Part E of the ACLS it is alleged that the defendants contravened their continuous disclosure obligations by being aware of the additional pre-tax provisions that needed to be taken on 17 October 2017, 17 November 2017, 21 February 2018, 31 May 2018 and 22 August 2018 and the reduction in after-tax profits on 31 December 2017 and 30 June 2018, but failing to communicate that information. The allegations in Part E are particularised by reference to the knowledge of eight identified officers of the defendants (Stephen McCann, Tarun Gupta, David Wilson, Dale Connor, Johannes Dekker, Craig Laslett, Michelle Letton and Ashley Mason) at the various dates which is set out in detail at Annexure A to the ACLS.
In summary, Part G of the ACLS alleges causation, reliance and loss.

[19]

Summary of relevant defences in the ACLR

In general terms, the defendants respond and raise substantive defences to the ACLS as follows: 1. admit that they made the relevant publications, announcements and disclosures on various dates (being 17 October 2017, 17 November 2017, 21 February 2018, 22 August 2018, 9 November 2018, 16 November 2018, 26 November 2018 and 25 February 2019) ([23]-[40]); 2. deny the "true position" of the GUN Project, the KSD Project and the NCX Project on specified dates, particularly the likely WOL P/L for each of the Projects as assessed by the defendants compared to the actual likely WOL P/L ([40A]-[40AL]); 3. deny that the defendants had inadequate provisions for the Projects and the Engineering Business and that other additional pre-tax provisions would need to be taken by the defendants ([40AM]-[40AR]); 4. deny that they required additional provisions and overstated after-tax profits in their financial results as published for the six months ended 31 December 2017 and their financial results as published for the 12 months ended 30 June 2018 ([40AS]-[40AT]); 5. deny that they made the representations on 17 November 2017, 21 February 2018 and 22 August 2018 to the Affected Market regarding their financial performance and the adequacy of their provisions and say that to the extent that they did make those representations, if they were opinions they genuinely held them and they had reasonable grounds for them, so denying that they engaged in misleading or deceptive conduct ([41]-[49K]); 6. in response to the allegations that the defendants contravened their continuous disclosure obligations: 1. say that the plaintiffs have not identified adequately or at all the basis on which it is alleged that any of the persons alleged to be officers of the defendants had or reasonably ought to have formed an opinion and/or drawn an inference in the specific terms of the provision information by the start of the Relevant Period or at any time during the Relevant Period ([49L(d)], [49Q(d)], [49V(d)], [49AA(d)], [49AF(d)]); 2. say that the plaintiffs' case does not identify adequately or at all any basis for the contention that the defendants or the persons alleged to be officers of the defendants knew or had or were aware of the information concerning the provisions or the profits ([49L(e)], [49Q(e)], [49V(e)], [49AA(e)], [49AF(e)]); and 3. say that the information was not information of which the defendants were aware and it was not required to be disclosed under s 674(2) of the Corporations Act, deny that the information was information that a reasonable person would expect to have had a material effect on the price or value of the securities and say it was otherwise not required to be disclosed ([49M]), [49R], [49W], [49AB], [49AG]); and 1. deny the allegations of causation, reliance and loss ([75]-[86]).
In the schedules to the ACLR, the defendants set out the particulars which form the basis on which they assert they had reasonable grounds for making the representations alleged. Those particulars include: 1. The defendants had in place business practices for determining the actual and projected performance of the Projects and the impact for the results of the Lendlease group as a whole, which included regular project reviews and monthly management reviews of the Projects, quarterly business reviews, regular meetings of an engineering steering committee, regular meetings of the Lendlease risk management and audit committee and regular meetings of the Lendlease board. 2. The percentage stage of completion of each of the Projects at the date of the alleged representations.

[20]

Summary of experts' reports

As stated above, the plaintiffs have served expert reports from Mr Badala, Mr Stone and Professor Zmijewski.
Mr Badala is an accountant with experience in performing construction status reviews and costs audits. Mr Badala's report is concerned with the gross profit margin for each of the Projects forecast by the defendants.
Mr Stone is a forensic accountant who has prepared a report containing the calculation of the additional provision that would have been required to be taken at certain dates and the implications for the defendants' reported results based on the gross profit margins that Mr Badala opined ought to have been determined.
Professor Zmijewski is an economist who has prepared a report on what the defendants' securities would have traded at if the revised provisions and the financial results were instead announced to the market.
As submitted by the plaintiffs, the reports are constructed so that Mr Badala's opinions inform Mr Stone's opinions, which in turn inform the opinions of Professor Zmijewski.
As indicated above, the defendants have provided expert reports from Mr Gibson, Ms Wright, Dr Unni and Mr Ali. The response to Mr Badala's report is provided by Mr Gibson. The response to Mr Stone's report is provided by Ms Wright. The response to Professor Zmijewski's report is provided by Dr Unni and Mr Ali.
The issues to which the plaintiffs assert that the documents sought in the Original NtP have relevance are those which they say arise from the report of Mr Badala and the report of Mr Gibson in response.
Relevantly, in the letter of instruction dated 10 November 2022 from PFM, Mr Badala was asked to have regard to the brief of materials provided to him and provide his opinions on the following five questions: Q1. What was the position of each of NorthConnex, Gateway Upgrade North and Kingsford Smith Drive Upgrade (Relevant Projects), including the likely time and cost to complete, having regard to the status of the Relevant Project, any design or construction issues identified and the nature and extent of the design, construction and commissioning works remaining to be performed, as at or around: (a) 17 October 2017; (b) 17 November 2017; (c) 21 February 2018[;] (d) 31 May 2018; and (e) 22 August 2018. Q2. To the extent that there are any increases in the time or cost to complete the Relevant Projects identified in response to question 1 above, as compared to what was internally reported at Lendlease, what was the reason for that increase in time or cost? Q3. In respect of each of the Relevant Projects, at what point in time could a likely increase in the time or cost to complete any of the Relevant Projects have been identified, having regard to the status of the project, any design and construction issues identified and the nature and extent of the design, construction and commissioning works remaining to be performed. Q4. During the period from 17 October 2017 to 8 November 2018 (Relevant Period), what costs, financial or project reporting systems did Lendlease have in place in respect of the Relevant Projects generally (or if those systems differed between Relevant Projects, in respect of each Relevant Project), for assessing: (a) the time and cost to complete the Relevant Projects; (b) the effect of any delays, variations and/or defects; and/or (c) the appropriate provision for the Relevant Projects. Q5. Were the costs, financial or project reporting systems for the Relevant Projects (or for each Relevant Project as the case may be) identified in your answer to question 4, sufficient to enable Lendlease to reliably determine: (a) the time and cost to complete of [sic] the Relevant Projects; (b) the effect of any delays, variations and/or defects; and/or (c) the appropriate provisions for the Relevant Projects. If not, please indicate why, and whether that insufficiency persisted for all or part of the Relevant Period (and if the latter, please indicate which part).
It is clear that all of these questions explicitly raised for Mr Badala's opinion the "time to complete" each of the Projects and the last two questions required Mr Badala to address the effect of any delays.
For the purposes of preparing his report, the defendants assert that Mr Badala was provided with more than 60 PDF program documents for the Projects and monthly project in delivery (PID) reports which were discovered by the defendants. Within these PID reports for each of the GUN and KSD Projects was a statement of the approved contract completion date, the current Forecast Completion Date and the current delivery completion date.
Mr Badala calculated the likely WOL P/L for each Project for each of the Assessment Months comprising direct costs (which he termed "directs") and indirect costs (which he termed "indirects") ([29(E)] and [29(F)]). In assessing the "indirects" for the KSD and GUN Projects, Mr Badala assessed the average monthly expenditure in respect of these costs on each Project at each Assessment Month and applied that average to the remaining months until his assessed likely completion date ([84]-[85]).
Importantly, as part of Mr Badala's methodology in his report: 1. He noted that the Forecast Completion Date for the GUN Project was 21 May 2018, based on the PID report in October 2017 ([106]). 2. For the GUN and KSD Projects he arrived at the Forecast Completion Date by assessing the likely completion date for the project based on the current status of the project and the actual completion date of the project ([86]). 3. To assess the likely GUN Project cost to complete indirects he calculated the remaining months to complete the GUN Project as at each of the Assessment Months based on the likely completion date ([129]). 4. He adopted 22 February 2019 as the likely GUN completion date for all Assessment Months based on ([133]): 1. his observation of the key issues Lendlease consistently reported to be impacting the GUN Project at the outset of, and throughout, the Relevant Period meaning that Lendlease should have been able to assess the completion date more accurately; and 2. the fact that the GUN Project actual completion date was March 2019 and, but for the key issues he observed, no new issues were known to have contributed to delay in the completion date of the GUN Project.
Mr Badala adopted a similar approach in his report concerning the likely completion date for the KSD Project for which he adopted 16 July 2020 as the likely completion date ([228], [232]), having noted that the Forecast Completion Date for the KSD Project was 16 July 2020, which was four months longer than stated in the PID report in October 2017 ([199]).
Mr Badala adopted a different approach for the NCX Project, without reference to the likely completion dates, because of what he regarded as a limitation in the records relating to it. Instead, to determine the likely NCX Project WOL P/L at each of the Assessment Months, Mr Badala determined the likely total final costs (TFC) based on his review and consideration of the joint venture's risks and opportunities assessment as at each of the Assessment Months. Evidently, the Forecast Completion Dates for the NCX Project did not form any part of Mr Badala's reasoning as it did for the GUN and KSD Projects.
There was no construction delay analysis of any sort in Mr Badala's report and he did not profess any expertise in that area. The plaintiffs made a forensic choice not to lead any evidence in chief from a construction delay expert.
Mr Gibson responded to Mr Badala's report. In the letter of instruction dated 2 March 2024 from HSF, Mr Gibson was instructed to consider the report of Mr Badala and the documents provided to Mr Badala and prepare a report providing his opinions on the methodology, opinions and conclusions in Mr Badala's report. Schedule 1 to that letter of instruction set out the assumptions that Mr Gibson was asked to make, although it was expressly stated that not all of those assumptions may be relevant to his analysis. Mr Gibson was asked to identify in his report specifically which assumptions underpinned, were necessary for or otherwise informed his analysis and opinions.
Amongst the assumptions contained in Schedule 1 are that in the Relevant Period, Lendlease and the Engineering Business had in place a number of reporting systems and processes to monitor and report on the status of individual projects, including the Projects, and in summary these included: 1. for the GUN and KSD Projects: monthly project reviews, quarterly project reviews and milestone reviews; 2. for the NCX Project: monthly project reviews (which became quarterly project reviews), Project Control Group meetings, joint venture steering committee meetings and ad hoc independent external reviews; 3. at the Engineering Business level: monthly management reviews, quarterly business reviews, quarterly finance reviews and monthly Engineering Steering Committee meetings; and 4. at the Lendlease Group level: reporting to board meetings and reporting to risk management and audit committee meetings.
These assumptions are then set out in further detail, with the monthly project reviews for the GUN and KSD Projects said to typically involve consideration of the project programme and the LLBJV for the NCX Project engaging Hinds Blunden (an external construction project management consultant company) to conduct independent reviews assessing the project's programme.
In Mr Gibson's report, he criticises Mr Badala's approach as inappropriately using hindsight ([1.1.4]) which leads him to overstate the number of months remaining on the GUN and KSD Projects after each Assessment Month ([1.5.1(c)]). Mr Gibson says that Mr Badala has adopted the Completion Date in the last Assessment Month of November 2018 in place of the Completion Date reported by Lendlease in each of the earlier Assessment Month, an approach which assumes that events that may have occurred up to November 2018 that caused delay to a Project would have been foreseeable one year earlier in November 2017 ([1.5.1(c)-(d)]). Mr Gibson opines that it is more appropriate to adopt the Completion Date forecasted by the project team at each Assessment Month as this is likely to be a more reliable reflection of what was known at the time without the influence of hindsight ([1.5.1(d)]).
Mr Gibson opines that for the Assessment Month of October 2017 and all subsequent Assessment Months for the GUN Project, Mr Badala has used hindsight and calculated the monthly costs through to 22 February 2019, which is the forecast completion date that Lendlease was predicting in its November 2018 reporting ([4.5.42]). Mr Gibson also opines that for the Assessment Month of October 2017 and all subsequent Assessment Months for the KSD Project, Mr Badala has used hindsight and calculated the monthly costs through to 16 July 2020, which is the forecast completion date that Lendlease was predicting in its November 2018 reporting ([5.5.26]).
Mr Gibson states that from his review of Mr Badala's report, it is not apparent to him whether Mr Badala has undertaken any delay or programme analysis on the Forecast Completion Date for the GUN Project ([4.5.49]). Mr Gibson also observes that Mr Badala has not undertaken any programme review or delay analysis on the Forecast Completion Date for the KSD Project or substantiated his opinion that Lendlease should have forecasted a completion date in all earlier Assessment Months that matched its anticipated completion date reported at the last Assessment Month of November 2018 ([5.5.40]).
Mr Gibson also concludes that Mr Badala's analysis is not reliable because in the case of the GUN and KSD Projects he substitutes Lendlease's contemporaneous "bottom-up estimates" of its costs to complete with the results of his later in time desktop review and methodology ([1.1.4(b)]. Mr Gibson says that he was instructed to assume that Lendlease's costs for the GUN and KSD Projects were prepared based on a "bottom-up" approach which is consistent with what he inferred from the briefed documents, in particular the GUN and KSD PID reports.
In relation to the NCX Project, Mr Gibson noted that Mr Badala held the view that in the absence of PID reports, similar monthly project and cost reporting for the NCX Project he was unable to adopt the same approach and methodology that he used for the GUN and KSD Projects ([6.2.2]). Mr Gibson again criticises Mr Badala's conclusions as being influenced by hindsight, looking back at facts known after the Assessment Months rather than limiting his assessment at the Assessment Months to the actual project progress and known facts on the NCX Project at that time ([6.3.18]).
In expressing his opinions, Mr Gibson did not undertake any delay analysis himself.

[21]

Evidence foreshadowed from Mr Thorpe

The plaintiffs have engaged a construction programming, scheduling and delay expert, Mr Ian Thorpe, whom they intend to ask to prepare a report in response to those parts of Mr Gibson's report concerning the likely completion dates for each of the Projects and the relevant risks and opportunities in respect of the NCX Project which should have been adopted by the defendants in preparing forecasts for each of the Projects. Mr Thorpe's conclusions, the plaintiffs say, would then be provided as assumptions to Mr Badala, whose conclusions would in turn be provided as assumptions to Mr Stone, whose conclusions would be furnished as assumptions to Professor Zmijewski.
Mr Thorpe has been briefed with, among other documents, all programs for the Projects that have been produced in discovery in the file format (PDF or native, where available) in which they were discovered.
By letter dated 30 July 2024 to MBL (which is in evidence, forming part of Exhibit 1 on the application [Thorpe letter]), Mr Thorpe details why he needs access to the Requested Programs in order to produce his report. Mr Thorpe states that he will need the native programs to: 1. "reply to any matters" in Mr Gibson's report "within [his] areas of expertise" as a specialist delay analyst with extensive experience in the construction industry; 2. perform his analysis, because the native files contain "relevant underlying information" that the PDFs lack, without which he will not be able to "conclusively assess how issues arising on each project affected the progress of the project", and because the native files "identify the relationship between activities on the projects". That information is necessary to enable him to identify the longest sequence of activities to completion of a project (the "critical path"), and to help him understand "the reasonableness of the assumptions, activity durations and linkages between the activities during the relevant timeframe." 3. understand the reasonableness of the assumptions used in relation to the critical path for the NCX Project, noting that he has requested the draft programs for this project because of an apparent vast difference between the completion dates of the final program versions in light of the two native files he has inspected and the forecast completion dates set out in the monthly reports.
Mr Thorpe also says that without the Requested Programs, in order to conduct his analysis he would need to reconstruct native versions of programs from the PDF versions - although any such attempts at reconstruction would likely result in "programs that bear very little resemblance to the native programs held by Lendlease", would not enable him to draw definitive conclusions about the likely completion date on the NCX and KSD Projects (without great difficulty), and are not an appropriate option in these circumstances.
Essentially, the evidence proposed to be given by Mr Thorpe is delay analysis in respect of each of the Projects, including an assessment of how issues arising on each Project affected their progress. The precise matters in Mr Gibson's report to which Mr Thorpe's proposed evidence would provide a response are canvassed in slightly more detail in the plaintiffs' submissions (summarised below).

[22]

LEGAL PRINCIPLES

The Original NtP is expressed to be a notice to produce under r 21.10 of the UCPR, which states: (1) Party A may, by notice served on party B, require party B to produce for inspection by party A - (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
Rule 21.10(1)(a) has no relevance to the Original NtP as it does not profess to require production of "any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by" the defendants.
To fall within a notice to produce under r 21.10(1)(b) of the UCPR, a specific document or thing which is relevant to a fact in issue needs to be clearly identified in the notice. That provision does not authorise general discovery in the manner of requiring the production of classes of identifiable documents, but requires specific documents to be clearly identified. In Norris v Kandiah [2007] NSWSC 1296, Brereton J at [3]-[5] said: [3] There are important and fundamental distinctions between a notice to produce under r 21.10 and a notice to produce under r 34.1. Rule 21.10, appearing as it does in Pt 21 of the Rules, is a process of discovery. A notice under r 34.1, appearing in Pt 34 entitled Notice to Produce to Court and following notices to produce at the hearing including opinions is a process akin to a subpoena for production. I endeavoured to explain the differences between the process of discovery and that of a subpoena for production in A Pty Ltd v Z [2007] NSWSC 899. One of the critical differences is that the touchstone of discovery is the concept of relevance to a fact in issue in the proceedings, whereas subpoenas for production are not necessarily limited to documents relevant to a fact in issue, but may extend to documents relevant to credit. [4] Part 21 r 10 authorises service of a notice to produce, in respect of documents referred to in originating processes, pleadings, affidavits and witness statements, and "any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by Young CJ in Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182. As his Honour explained, the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required. [5] In my view, this notice does not clearly identify specific documents, but calls for classes of documents. It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. Accordingly, in my view, this notice is not a valid exercise of the power to serve a notice to produce under r 21.10, and I would set it aside on that basis.
These principles were endorsed in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 by Barrett J at [8]-[11].
In Loulach Developments Pty Ltd v Roads and Maritime Services (No 2) [2018] NSWSC 1465, Leeming JA (sitting at first instance) considered the scope of UCPR r 34.1, which deals with notices to produce to court at hearing and, like r 21.10, uses the language of "specific document or thing" in defining what may be sought in such a notice. Citing Barrett J in Patonga at [13]-[14] Leeming JA stated at [12]: … [D]eriving from the requirement in r 34.1 of the notice to require production of "any specified document or thing," is the need for the notice with reasonable particularity to identify what it is which is the subject of the requirement for production. There are a number of familiar ways in which that can occur. One is by requiring production of a nominated file on a particular matter. Another is to call for particular documents which are capable of being identified on their face.
Rule 21.9(2) of the UCPR sets out the test for a document or thing to be "relevant to a fact in issue" for the purposes of r 21.10(1)(b) (and the other rules in Pt 21 Div 2) in the following terms: For the purposes of this Division, a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.
It is well established that the grounds on which a notice to produce may be set aside are the same as those which justify the setting aside of a subpoena. In Azzi v Volvo [2006] NSWSC 283, Brereton J at [4] conveniently collected the relevant authorities on this principle, saying as follows: It is now established that a notice to produce of this type may be set aside in circumstances and on grounds equivalent to those applicable to the setting aside of subpoenas [Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136, Highfields Preparatory and Kindergarten School Pty Ltd v Simpson (NSWSC, Master Greenwood, 22 August 1985, unreported); Portal Software Pty Ltd v Bodsworth [2005] NSWSC 1115, [10]]. Those grounds include, relevantly that the subpoena seeks discovery or further discovery from a party [Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372; Finnie v Dalglish [1982] 1 NSWLR 400]; that the subpoena is oppressive [Commissioner for Railways v Small; Senior v Holdsworth; Ex parte Independent Television News Ltd [1976] QB 23; Finnie v Dalglish], or that the subpoena calls for production of documents which have no apparent relevance to the issues in the proceedings [Trade Practices Commission v Arnotts Ltd (1989) 21 FCR 306; Hatton v Attorney-General (2000) 158 FLR 31; Portal v Bodsworth [20]-[21]]. The grounds which I have stated are far from exclusive, and are all but instances of the court's power to control its process, the power to set aside a subpoena being an instance of the court's inherent jurisdiction to control its process in the case of an abuse of process. The traditional categories of cases in which subpoenas might be set aside are not the only cases in which the court will intervene, but particular examples of a broad class of case in which the court will set aside a subpoena as an abuse of process [Botany Bay Instrumentation Pty Limited v Stewart [1984] 3 NSWLR 98, 100 - 101].
The court should not permit a notice to produce to be used oppressively. In Foord v Brock [2005] NSWCA 156, Bryson JA at [61] said: Well known limitations on the use which may be made of subpoenas appear from many decisions of the Court; significantly in Commissioner for Railways v Small (1938) 38 SR NSW 564, and a recent example in NSW Commissioner of Police v Tuxford [2002] NSWCA 139. In a similar way a Notice to Produce to another party should not be used oppressively; in proceedings conducted with pleadings where discovery and inspection are available there can be little use for a Notice to Produce except for production of documents which have been identified earlier in the proceedings.
The test for whether the documents sought in a notice to produce or subpoena have a legitimate forensic purpose was stated in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, by Bell P (as the Chief Justice then was) at [65] and [68] as follows: [65] It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP [Pty Ltd v Moebes [2009] NSWSC 306] at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent. … [68] There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215 . The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.
The setting aside of a notice to produce also bears similarity with the setting aside of a subpoena in the sense that the court's powers rest in the notion of an abuse of process. In Blacktown City Council, Bell P said at [60]: There is a danger in using the language of "tests" for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court's general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. …
In exercising the powers of the court, I must also have regard to the requirements of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) (CPA).
The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.
In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.
In deciding whether to make an order or direction for the management of proceedings, including an order of a procedural nature, I must seek to act in accordance with the dictates of justice: s 58(1) of the CPA. By operation of s 58(2) of the CPA, the determination of the dictates of justice in a particular case requires me to have regard to the provisions of ss 56 and 57 of the CPA and gives me the discretion to have regard to such of the following matters I consider to be relevant: 1. the degree of difficulty or complexity to which the issues in the proceedings give rise; 2. the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities; 3. the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties; 4. the degree to which the respective parties have fulfilled their duties under s 56(3); 5. the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; 6. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and 7. such other matters as the court considers relevant in the circumstances of the case.
These considerations in the context of setting aside a notice to produce were emphasised in Lawrence v Sammut [2022] NSWSC 344, by Lonergan J at [26]: Every application of the powers of this Court under the UCPR must facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005 (NSW). Setting aside notices to produce that seek irrelevant material facilitates that overriding purpose. To require those notices to be complied with or to allow them to remain operative, has the opposite effect of introducing prolixity, delay and irrelevance into the proceedings.
In Blacktown City Council, Bell P considered the operation of the overriding purpose and the interests of justice in relation to an application to set aside a subpoena, saying at [58]: As Moffitt P observed in Waind, writing in 1978, "concepts as to what is appropriate between parties have changed in favour of fuller disclosure of relevant matters": at 384. Examining the question more than 40 years later, one important contemporary contextual matter that informs the Court's consideration of the proper use of subpoenas in civil litigation is s 56 of the Civil Procedure Act and its identification of the overriding purpose of that Act and of the Uniform Civil Procedure Rules in their application to civil proceedings, namely to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". An appropriately targeted subpoena may advance the overriding purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.
In the context of the purpose of the notice to produce in the present case, it is relevant to note that an order for "evidence in reply" has a particular meaning, being that articulated in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 4) [2019] QSC 199 by Bond J at [17] (footnote omitted): (a) Meaning must be given to the fact that the order has provided that the evidence is "in reply". (b) Prima facie the use of that terminology flags an intention that the evidence "in reply" would be limited to evidence rebutting the evidence to which the evidence "in reply" was addressed. As a general proposition, case management orders permitting of evidence "in reply" are not intended to provide gateways for evidence merely providing supplementary confirmation of a plaintiff's case. Nor, a fortiori, are they intended to provide a gateway to admit of new or alternative modes of proving the plaintiff's case. (c) The rationale for so construing such orders is the promotion of the purpose identified at [15] above. So construing such case management orders is necessary to ensure fairness and to avoid the vice that if evidence "in reply" were to be extensively admitted it would be necessary to give the opponent the opportunity in turn to rebut the new "reply" evidence, with the consequence that issues would not be narrowed and the interlocutory process would meander on. (d) The delivery of evidence purporting to be in reply but actually amounting to further evidence in chief would require leave. But it may well occur sufficiently in advance of trial or be of such a nature that the failure to comply with the constraint intended by the words "in reply" is hardly worthy of remark, let alone of a contested application for leave to deliver the evidence notwithstanding failure to comply with the order. In those cases, leave would be a formality. But the closer to trial and the more disruptive reception of the non-compliant material would be, the more likely it is that there will be objection and the greater the weight there might be to the argument that fairness requirements might require the Court not to permit non-compliant material to be received into evidence.
In Australian Securities and Investments Commission v Adler (2001) 40 ACSR 214, Santow J was called upon to determine whether the plaintiff in that case, in seeking to rely on certain affidavit evidence which it claimed was in reply to the defendants' expert evidence, was impermissibly splitting its case. In respect of one of the affidavits sought to be relied on by the plaintiff (to which was annexed a report pertaining to the valuation of a company), Santow J refused its admission and noted that ([21]): … [The affidavit's] subject matter in substance constituted an important part of the Plaintiff's case in chief … The Plaintiff always had to establish a disparity value of [the company] compared to the price paid for it by [the purchaser] at the time of its purchase and this affidavit … goes to that, though it be framed in form as a rebuttal. The First Defendant could not fairly be asked now to alter the forensic choices that it made on the premise that this material, if admitted at all, should be part of the Plaintiff's case in chief. …
It is clear from the above that in determining whether evidence constitutes evidence "in reply", the court should concern itself with substance over form.

[23]

Defendants

The defendants made submissions in support of their application to set aside the Original NtP, principally arguing that: the documents were being sought as part of an attempt by the plaintiffs to obtain a third round of discovery and to put on further evidence in chief which should not be permitted; the documents would serve little or no forensic purpose; production of the documents was not necessary to enable the plaintiffs to finalise their evidence in reply; production would be unduly burdensome at such a late stage in the proceedings; certain categories of documents identified in the Original NtP were imprecise; and service of the Original NtP and/or compelled production pursuant to the Original NtP was or would be contrary to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW).
The defendants identified the following bases on which the Original NtP (or paragraphs of it) is liable to be set aside.
Firstly, the Original NtP did not comply with r 21.10 of the UCPR insofar as the second and third categories of documents sought were not limited to "document[s] referred to in any originating process, pleading, affidavit or witness statement" (r 21.10(1)(a)) or a "specific document or thing that is clearly identified" (r 21.10(1)(b)). Instead, they said, paragraphs 2 and 3 of the Original NtP sought an unspecified number of documents, of unspecified dates, spanning a period of more than 14 months (category 1) or 19 months (category 2).
Secondly, the need for the court to pay regard to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings (s 56(1) and (2) of the CPA), in light of the plaintiffs' conduct in the proceedings to date, favours the setting aside of the Original NtP. The defendants observe that in making any case management orders, the court should give priority to the efficient disposal of the court's business and the timely disposal of the proceedings, at a cost affordable by the respective parties (citing s 57 of the CPA), and should consider the degree of expedition with which the parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities (citing s 58(2)(b)(ii) of the CPA) and the extent to which the parties have each fulfilled their duties to assist the court to advance the overriding purpose and, relatedly, to comply with court orders and directions (citing ss 56(3) and 58(2)(b)(iv) of the CPA). The defendants submit that court practice and procedure should be implemented so as to eliminate any lapse of time between the commencement and the final determination of the proceedings beyond that reasonably required for any interlocutory activities necessary for the fair and just determination of the issues in dispute and the preparation of the case for trial (citing s 59 of the CPA).
In this connection, the defendants point to the failure of the plaintiffs to approach the proceedings expeditiously, with the result that now, more than five years after the proceedings were commenced, the plaintiffs have yet to file their evidence in reply. The defendants refer to various aspects of the plaintiffs' conduct in prosecuting the proceedings (including noncompliance with successive sets of timetabling orders) which they say has generated significant delay and is both antithetical to the overriding purpose in s 56 of the CPA and oppressive. They point to the following: 1. It has been approximately four years since the plaintiffs received extensive discovery pursuant to the Original Discovery Orders, totalling more than 40,000 documents across five tranches and costing the defendants in excess of $5.5 million, and approximately three years since the plaintiffs received further discovery pursuant to the Further Discovery Orders of more than 15,000 documents. 2. Since that time, the plaintiffs have repeatedly breached timetabling orders (fixed by the court or proposed by the plaintiffs themselves) requiring them to file and serve their ACLS and evidence in chief, including the March 2022 orders, the August 2022 orders, the proposed September 2022 orders, the November 2022 orders and the December 2022 orders. The plaintiffs ultimately served their evidence in chief in increments between 10 and 25 November 2022, a total of four months after the original deadline for service of the plaintiffs' evidence. The plaintiffs served the first proposed ACLS, which was incomplete in material respects, on 21 December 2022, and did not serve the final proposed amended claim (the ACLS) until 27 June 2023, after having served a total of six different iterations of that claim - various of which contained deficiencies - between December 2022 and June 2023. The plaintiffs were ordered to pay costs thrown away by reason of the amendments. 3. By contrast, the defendants served their main lay evidence on 21 and 22 December 2023 and their expert evidence between 8 and 13 March 2024, representing only a minor extension to the timetable fixed by the June 2023 orders (15 December 2023 for the defendants' lay evidence and 16 February 2024 for the defendants' expert evidence), and in circumstances where the defendants promptly informed the plaintiffs that they were agreeable to a commensurate extension for the plaintiffs to serve their evidence in reply. 4. The plaintiffs did not engage with the defendants' proposal regarding a commensurate extension, except to indicate to the defendants via email on the date by which the plaintiffs would have been required to serve their reply evidence in accordance with the proposed commensurate extension that they would not be serving their reply evidence that day and would contact them shortly about a proposed revised timetable, which they failed to do.
Thirdly, the Original NtP represents an attempt by the plaintiffs to obtain material not for the purposes of furnishing evidence in reply - being evidence designed to rebut - but rather to essentially put on additional evidence in chief, from a new expert within a new field of expertise, which should not be permitted. The defendants note that the plaintiffs themselves acknowledge the possibility that the evidence proposed to be given by Mr Thorpe may not strictly constitute reply evidence, having expressed an intention to seek leave to rely on Mr Thorpe's evidence if necessary and not to object to the defendants serving evidence in response.
The defendants submit, referring to Roe d Trimlestown v Kemmis (1843) 9 Cl & Fin 749 at 781, that evidence in reply can only be "for the purpose of rebutting", and also reproduce Bond J's remarks on this point in Sanrus at [17], which I have set out above.
The defendants cite Adler (Santow J at [21]) for the proposition that evidence which in substance falls within the scope of evidence in chief is not properly rebuttal. They note that the plaintiffs have had their opportunity to put on evidence in chief and took a significant period to do so.
In relation to the professed basis for the Original NtP, the defendants note that any assertion that it was the defendants' expert, Mr Gibson, who put in issue the matter of delays and completion dates for the Projects, is plainly wrong given that the plaintiffs' own evidence in chief included a report from a construction quantum expert, Mr Badala, which provided an opinion on the likely completion dates of the Projects; the categories of documents required to be discovered by the defendants repeatedly referred to "delay"; and the plaintiffs' own evidence on this motion (including affidavit evidence addressing the differences in opinion between Mr Badala and Mr Gibson) confirms that to the extent delay and project completion dates were in issue in the proceedings, the plaintiffs were aware of this at the time they were preparing their evidence in chief. The defendants note, further, that Mr Badala was briefed with documents which record Lendlease's forecasted completion dates for the GUN and KSD Projects which in turn are relied on in relation to his "likely completion date" opinions, and that, against this background, it was open to the plaintiffs to put on evidence in chief from a construction delay expert in respect of "likely completion dates" for the Projects, but that they did not do so.
Mr Gibson's report in response, responding to the evidence and the pleaded case as put by the plaintiffs, contains no programming or delay analysis but rather simply points out what Mr Gibson considers to be shortcomings in Mr Badala's approach based on the same documents with which Mr Badala was briefed. It is open to Mr Badala, the defendants say, to explain why his "likely completion dates" are appropriate and/or why Mr Gibson's criticisms are unsound. Instead, the plaintiffs now seek to call a construction delay expert to conclusively assess progress issues with the Projects and to ascertain, for each of the Projects, the reasonableness of the assumptions, activity durations and linkages between the activities during the relevant timeframe. The defendants submit that this is not reply evidence; the plaintiffs have not referred to any part of Mr Gibson's report or the defendants' lay evidence dealing with "activity durations" or "linkages between the activities", and, if put into issue now, these topics would constitute a new part of the case and the defendants would almost certainly need to put on further evidence in response.
The defendants submit that in addition to the possibility of further responsive evidence from the defendants being required, the plaintiffs' evidence on this motion - to the effect that Mr Thorpe's conclusions would be provided to Mr Badala, whose revised conclusions would then be given to the plaintiffs' accounting expert (Mr Stone), with Mr Stone's conclusions in turn informing the assumptions to be provided to the plaintiffs' loss expert, Professor Zmijewski - gives the defendants reason to suspect that the plaintiffs' case may need to be amended and the defendants required to produce new evidence, resulting in substantial wasted time and costs.
Given, among other factors, the advanced stage of the proceedings, the expense already incurred by the defendants in meeting the plaintiffs' evidence in chief, the completion of the Projects, and the sale of the Engineering Business several years ago (where all but two of the defendants' lay witnesses are no longer employees of the defendants), the defendants submit that the plaintiffs should not be permitted to receive a "second go" at their evidence in chief.
Fourthly, the defendants submit that the documents sought in the Original NtP have little or no forensic relevance to the issues in the proceedings and are not necessary to finalise the plaintiffs' reply evidence. In this regard, the defendants state that the plaintiffs' case principally concerns provisions the plaintiffs allege the defendants should have recognised at the Group level, materials provided to Group-level forums had already been discovered, and native program files recording the linkages between thousands of individual activities involved in the construction of the Projects undertaken by one business unit within one segment of the defendants' global business have little bearing on that question. There is no allegation that in considering Group-level provisions, regard should have been had to program files (native or otherwise), or that relevant personnel had the ability to interrogate linkages in native program files.
The defendants submit that in circumstances where the plaintiffs' evidence in chief and the defendants' responsive evidence was prepared without reference to the documents sought in the Original NtP, and where the parties' experts were provided with the same documents, it is difficult to see how those documents could be relevant to evidence in reply in any real sense. Even if the Requested Programs could potentially be relevant (which the defendants deny), Mr Badala, who has already expressed opinions on the likely completion dates for the GUN and KSD Projects without the aid of the Requested Programs, has not referred to those documents as being necessary to formulate those opinions. Moreover, the defendants say that the plaintiffs have already received multiple programs in PDF for each of the Projects as well as several .xer files.
The defendants submit that because the analysis underpinning the plaintiffs' construction evidence (and the defendants' construction evidence in response) about the NCX Project is based on risks and opportunities registers and cost movement documents, and the scheduled completion of the NCX Project does not form part of the plaintiffs' existing evidence in the same way as on the GUN and KSD Projects, the Requested Programs have little or no forensic relevance.
As a final point on necessity, the defendants point to previous representations by the plaintiffs to the effect that the Requested Programs were not strictly needed in order to finalise their evidence in reply. They note that the plaintiffs had previously stated that if the documents were not provided, the plaintiffs would be set back about eight weeks in finalising and providing their expert evidence in reply (an extension to which the defendants agreed). In addition, Mr Thorpe himself, in the Thorpe letter, indicated a potential approach by which information from the PDF documents already discovered by the defendants could be reconstructed. The defendants note that the plaintiffs have not filed an affidavit from their new expert deposing to the alleged necessity of the Requested Programs (despite the court's indications at the directions hearing on 26 July 2024), and as such the defendants are unable to interrogate that expert's view.
Finally, the defendants submit that the Original NtP ought to be set aside because of the burden that production of the Requested Programs would pose for the defendants. The defendants state that the Requested Programs are not readily available, and, given that discovery concluded some years ago, they would be required to, among other things, retrieve the relevant project drives from their archived location; incur charges for processing and hosting retrieved data; identify and interview particular former employees of the defendants in order to locate possible sites of potentially responsive files; engage a former employee of the defendants to review those files (or, in the alternative, have HSF purchase access to the requisite specialist software and train a solicitor to use it); and conduct quality control checks. The defendants emphasise that these tasks would need to be undertaken in circumstances where the Projects were completed and the defendants sold the Engineering Business several years ago, the persons with working knowledge of the Projects and who assisted with discovery some years ago are no longer employed by the defendant, and the files that might need to be reviewed potentially number in the thousands. Additional challenges of compliance with the Original NtP pointed to by the defendants include: 1. in relation to category 1: the need for a manual line-by-line comparison, possibly in respect of many files, to verify potentially responsive ".xer" files against PDF files previously produced, where more than 5,000 line items might correspond with a given program; 2. in relation to categories 2, 3 and 4: determining what documents are being sought by the plaintiffs, in circumstances where categories 2 and 4 as framed in the Original NtP differ from those as they are framed in the notice of motion and in the plaintiffs' evidence on the motion, and where it is unclear what "drafts" are being sought in category 3; and 3. to the extent that a costs estimate can be given, the costs of production are likely to be in the many hundreds of thousands of dollars.

[24]

Plaintiffs

In short, in opposing the defendants' application, the plaintiffs contend that the defendants' invocation of the overriding purpose (s 56 of the CPA) and complaints of delay are misplaced; that the Requested Programs are necessary and relevant to facts in issue; that the defendants have overstated the time, effort and cost of compliance with the Original NtP; that whether the further expert report proposed to be provided by the plaintiffs is "in reply" cannot be determined in advance of production of that report; and that the defendants' complaints as to the form of the Original NtP constitute an arid controversy.
On the question of delay, the plaintiffs note that this needs to be considered in the broader context of the proceedings, including the defendants' special leave application (which was granted by the High Court on 8 August 2024), paragraph 2 of which set out the defendants' intention to resist the fixing of dates for trial or mediation until such time as the special leave application and any appeal has been resolved. The plaintiffs state that in light of that expressed intention, and in circumstances where the decision in the High Court appeal may be expected to be handed down in early 2025 (following which an opt out and/or soft closure notice will need to be issued to group members), and a listing for mediation and a substantial trial, sought in early 2025, might not occur until the end of 2025 at the very earliest, the defendants appear to be agitating not for the closure of evidence so that the matter may be promptly tried, but rather the closure of evidence so that the matter may go into abeyance - to "hurry up and wait". The plaintiffs resist any suggestion that it is the plaintiffs that are prolonging the continuation of the proceedings against the defendants.
In this connection, the plaintiffs submit that the defendants' assertions of generalised dilatoriness on the plaintiffs' part - of which the additional time (15 additional weeks) taken by the plaintiffs to file and serve their expert evidence, and the multiple iterations of the plaintiffs' proposed amended pleading are cited by the defendants as illustrations - are overstated. They submit that the delays in the plaintiffs' preparation of their expert evidence have already been addressed, that the expert evidence in the case is complex, and that it is unreasonable for the defendants to characterise service by the plaintiffs of various iterations of a proposed amended pleading in an effort to reach a consent position and narrow the parties' dispute as inconsistent with the overriding purpose.
As to the relevance and necessity of the Requested Programs sought in the Original NtP, the plaintiffs make, as a framing observation, the point that if construction fell behind with the Projects, additional indirect costs of the kind necessary to support the construction activity generally would be incurred, increasing the total cost of the Projects. They note that Mr Badala's report, which contains a detailed analysis and quantification of the WOL P/L for each of the Projects at given points in time, feeds into an expert accountant's report, which in turn informs an expert economist's report. The plaintiffs state that Mr Badala's task involved quantifying the likely WOL P/L for each of the Projects, where for the GUN and KSD Projects that meant opining on a likely completion date and extrapolating indirect costs and risks over that period, and where Mr Badala proceeded on the basis that the reported completion date at the end of the Relevant Period (for those two projects) was the most accurate. For the NCX Project, Mr Badala's approach differed due to a dearth of relevant documents, namely an assessment of the risks and opportunities identified by the defendants; however, his identification of a likely completion date remained a key component in quantifying risks and opportunities. Mr Gibson's report in response to Mr Badala's evidence sets out Mr Gibson's disagreement with Mr Badala's assessment of likely completion dates for the Projects, including Mr Gibson's opinion (expressed directly in respect of the KSD and GUN Projects, but also, as Mr Gibson's reasoning discloses, applicable to the NCX Project) that delay analysis is required in order to displace the contemporaneous views of Lendlease as to likely completion dates. In this connection, the plaintiffs refer to the following opinions articulated by Mr Gibson in his report: 1. "[I]t is not apparent to me whether Mr Badala has undertaken any delay or programme analysis on the forecast completion dates for the GUN Project [or the KSD Project]". 2. "There is no causal link to demonstrate that any individual issue caused delay beyond the impacts that I infer were already being recognised by Lendlease in any of the Assessment Months". 3. The integrated risks and opportunities on the NCX Project (including the LLBJV-reported completion dates) were "the most likely outcome". 4. In relation to the NCX Project, it can be inferred that the "LLBJV looked at a further alternative scenario programme with [alternative completion dates] in the [unintegrated risk and opportunities] register", but Mr Badala's use of the unintegrated risks and opportunities was inappropriate because, inter alia, the prospect of the unintegrated risks materialising was "too remote".
The plaintiffs submit that the Requested Programs as sought in the Original NtP are necessary to directly challenge the foregoing propositions and opinions advanced by Mr Gibson, and note that the plaintiffs have engaged Mr Thorpe to prepare a report responsive to those aspects of Mr Gibson's report. The plaintiffs state that the four categories of documents sought in the Original NtP, being the native ".xer" versions of the Project programs (many of which have already been discovered as PDFs) are the contemporaneous versions of the project programs for each of the Projects, as amended in the Relevant Period (and, in the case of the NCX Project, for a six month period prior to the Relevant Period, it being unclear when, between April and September 2017, the last substantial update to that particular program occurred). The Requested Programs are Gantt charts depicting the planned timeline of activities on each of the Projects.
The plaintiffs say that Mr Thorpe has given direct evidence of his need for the native files in the Thorpe letter, where he states: 6. I require these programs in native format in order to perform my analysis. This is because there is relevant underlying information within those native files that is not on the .pdf formats of the programs. Without that relevant underlying information, I will not be able to conclusively assess how issues arising on each project affected the progress of the project. 7. Most importantly, the native programs identify the relationships between activities on the projects. This information is only available in the native format of the programs and is necessary to correctly identify the longest sequence of activities to completion of a project (the "critical path"). Without that information, I would need to make assumptions about the sequences of activities and their relationship with one another, with no ability to test whether those assumption are correct. In the case of [the NCX Project], one native program has over 17,000 activities, meaning that with only a .pdf version of a similarly detailed program, there is little to no chance of correctly identifying each linkage between the activities.
In other words, the plaintiffs say, the PDF version of relevant documents supplies only a flat, visual representation of a more sophisticated model, akin to a hard copy of a spreadsheet that does not display the formulas in each cell, and Mr Thorpe requires the Requested Programs to respond to the critical issue raised by Mr Gibson, being the causal link between individual issues and others in the sequence. Without the Requested Programs, Mr Thorpe "would need to reconstruct native versions of the programs from the .pdf versions", the product of which would be "programs that bear very little resemblance to the native programs held by Lendlease", from which it would be difficult for him to draw conclusions about the likely completion dates for the Projects (Thorpe letter, [10]). The plaintiffs submit that PDF versions of the relevant documents are no substitute for the native files.
The plaintiffs answer the defendants' submissions as to the relevance of the Requested Programs as follows: 1. Mr Gibson has formulated his opinions, and disagreed with Mr Badala, on the basis that delay analysis is relevant, and Mr Thorpe has stated that to perform any delay analysis, he requires the Requested Programs. 2. Notwithstanding Mr Badala took a different approach to the NCX Project in his analysis (namely in using risks and opportunities registers and cost movement documents) than that taken in relation to the GUN and KSD Projects, the forecast completion date and the native programs informing that are nonetheless relevant because, among other reasons, Mr Badala's identification of a likely completion date remained a key component in quantifying risks and opportunities in respect of the NCX Project. 3. The existence of alternatives to the production of the Requested Programs sought in the Original NtP does not displace or diminish their relevance. As Mr Thorpe has indicated, attempts to reconstruct the .xer files (or the data contained therein) from the PDF files on hand would likely result in programs that bear very little resemblance to the native files held by the defendants. The plaintiffs' position at all times has been that this is not a viable option. 4. The defendants' assertion that the plaintiffs have not yet filed an affidavit from their new expert deposing to the alleged necessity of the Requested Programs, despite the court indicating that such was required on 26 July 2024, rests on a mischaracterisation of what the court actually said on that occasion. Moreover, the Thorpe letter does precisely what the court suggested was required: for "the expert to focus his or her mind on the question".
As to the burden of production, the plaintiffs submit that the Original NtP is not oppressive and does not call for time and expense out of proportion to the forensic relevance of the documents sought or the nature of the case. They submit that the only files that need to be reviewed are .xer files, which comprise a small number of the some 4.6 million documents collected and processed by the defendants for the purposes of discovery. In terms of the laboriousness of production, the plaintiffs contend that a more efficient way of identifying the relevant documents exists than that which the defendants suggest would be required, and refer to the manner in which some of the PDF versions already discovered have been numbered (sequentially, on a monthly basis). The plaintiffs submit that any additional costs that the defendants would incur in connection with producing the Requested Programs would be a fraction of the $5.5 million already expended by the defendants in complying with the Original and Further Discovery Orders, and suggest that resisting the Original NtP is likely to consume more costs than complying with it. The plaintiffs also state that any inconvenience now arising as a consequence of arrangements made by the defendants' solicitors for the storage of documents they obtained from the defendants for the purposes of discovery, and the asserted need for HSF now to interview their own client, is not of the plaintiffs' making.
In response to the defendants' contention that the evidence which the plaintiffs are proposing to put on with the assistance of the Requested Programs is not properly evidence in reply, the plaintiffs frankly acknowledge that leave will be necessary to the extent Mr Thorpe's report cannot be characterised as reply evidence and have indicated that they are amenable to the defendants having a reasonable opportunity to file and serve responsive evidence in that case. However, the plaintiffs maintain that the issues sought to be addressed in Mr Thorpe's report, and which Mr Thorpe has been retained to consider and address, including delay analysis, are ones arising on Mr Gibson's report. They state that a report is not non-responsive merely because it has been produced by an expert from another discipline. Moreover, they say that whether a report is wholly or partly "in reply" can only be determined by the court upon considering that report and its contents; it is not an exercise that can occur in the abstract, and the production of the Requested Programs sought in the Original NtP is necessarily and logically antecedent to that exercise.
As to the defendants' suggestion that the introduction of evidence from Mr Thorpe would bring about a substantial change to the plaintiffs' case, the plaintiffs note that Mr Badala's evidence in reply (potentially including different figures on account of matters raised by Mr Gibson) will already inform that of the plaintiffs' other experts. An amendment to the pleadings to ensure they align with the actual expert evidence might be required, as is natural and appropriate, and that could conceivably occur irrespective of anything produced by Mr Thorpe. Further, the plaintiffs distinguish between the situation in which a party seeks to rely on new evidence in advance of the trial, and the present situation, where the plaintiffs seek to rely on one additional expert in a large case already involving seven experts and with no hearing date on the horizon, which they say occasions no prejudice.
In response to the defendants' objections to categories 2 and 3 of the Original NtP going to matters of form (namely that those categories seek identifiable rather than identified documents), and the defendants' suggestion that what the plaintiffs are seeking is actually tantamount to discovery, the plaintiffs submit as follows: 1. A category of production appearing in a notice to produce or subpoena is not equivalent to "discovery", and the Original NtP does not require a reviewer to form a view as to the legal effect of any documents, nor whether those documents relate to a particular subject matter (citing Patonga at [15]). 2. A debate over compliance with r 21.10(1)(a) or (b) of the UCPR can be resolved by issuing a UCPR r 34.1(1) notice to produce in the same terms (citing Health Administration Corporation v Toll Global Forwarding Pty Ltd [2024] NSWSC 285 at [107]), and there is little to gain by a debate over whether a notice to produce issued under UCPR r 21.10(1)(b) ought to have been issued under UCPR r 34.1(1). 3. The court's powers relevant to case management, in combination with the overriding purpose, permit flexibility; as Meek J recently observed in Toll at [119], a judge may in an appropriate case in dealing with the form of a notice to produce slightly modify the requirement for production in a manner that appears to go against the specificity requirement of connoting something that is identified, and instead request something that is identifiable.
The plaintiffs submit that absent other (substantive) grounds capable of persuading the court that the Original NtP should be set aside, the court should not be concerned with a purely technical question as to form between the parties.

[25]

Defendants in reply

The defendants raise the following points in reply.
The defendants refer to the plaintiffs' suggestion that in seeking to have the Original NtP set aside on the grounds of delay resulting from the plaintiffs' failure to prosecute the proceedings expeditiously, in circumstances where no trial date has been fixed, the defendants are pressing for the plaintiffs to "hurry up and wait". The defendants say that the fact that no trial date has been fixed does not give the plaintiffs licence to obtain further discovery, brief a new expert, introduce new lines of inquiry, serve more evidence in chief and amend their case, when the proceedings have reached the stage where discovery has been completed, pleadings have closed, all evidence in chief has been served, and the defendants have expended considerable time and resources preparing lay and expert evidence in answer to the plaintiffs' case as pleaded. The defendants emphasise that their desire is to avoid unfairness and prejudice and to ensure compliance with ss 56-60 of the CPA.
In terms of the necessity of the Requested Programs, the defendants refute the plaintiffs' assertion that they have provided direct and cogent evidence in that regard from Mr Thorpe. They refer to what was said by Ball J to counsel for the plaintiffs at the directions hearing on 26 July 2024, quoting from the transcript as follows (T3): HIS HONOUR: Mr Edwards, you are going to have to put on some evidence from your expert, aren't you, to explain just why he needs this, or she needs this. … HIS HONOUR: - I just think - my experience with experts is that they often say they would like something, but when they're confronted with precisely why they actually need it the answer isn't always obvious. Now I'm not saying that that's this case but it is desirable to require the expert to focus his or her mind on the question whether - and the test is going to be whether this information is really needed.
The defendants state that the plaintiffs have given no explanation as to why no affidavit from Mr Thorpe addressing the alleged necessity of the Requested Programs has been produced, and instead offer untestable hearsay evidence in the form of the Thorpe letter (a first draft of which was prepared by the plaintiffs' solicitors with subsequent drafts exchanged between MBL and PFM).
On the relevance and necessity of the Requested Programs generally, the defendants observe that if, as the plaintiffs claim, the documents have "forensic relevance", they ought to have addressed them in their evidence in chief as opposed to seeking to introduce a new area of factual inquiry, requiring new documents, a new expert in a new field of expertise, and the near-certain necessity of new responsive lay and expert evidence, at this late stage in the proceedings.
As to the question of whether the foreshadowed new evidence from Mr Thorpe (a new expert) will or will not constitute evidence "in reply", the defendants make the following submissions: 1. Insofar as likely completion dates and/or delay in respect of the Projects are relevant to the plaintiffs' case, this was known by them from the outset, they made a deliberate forensic choice to address those matters through Mr Badala's evidence in chief, and those matters were not first raised by Mr Gibson. 2. The plaintiffs were aware that likely completion dates would inform their estimate of likely WOL P/L for the Projects, having directed Mr Badala in their letter of instruction to opine on the position on each of the Projects including the likely time to complete and at what point in time a likely increase in the time to complete could have been identified. 3. Mr Badala himself confirmed in his report that the likely completion dates informed his estimate of likely WOL P/L for the Projects, stating that he had assessed the likely completion dates for the Projects based on their current status, including known issues impacting their completion, and the actual complete dates for the Projects. Mr Badala set out his opinion of the "Likely GUN Completion Date" and "Likely KSD Completion Date", and the plaintiffs made a deliberate forensic decision to adopt Mr Badala's view of completion dates based on discovered materials. 4. Mr Gibson's report did not include any programming or delay analysis, but rather merely pointed to shortcomings in Mr Badala's opinions by reference to documents which Mr Badala had been briefed with. The plaintiffs' assertion that Mr Gibson put into issue "a causal link between individual issues and others in the sequence" is incorrect and unsupported by any reference to Mr Gibson's report. 5. In circumstances where Mr Gibson did not opine on a "likely" or "remote" completion date for the NCX Project, it remains unclear how, in the plaintiffs' view, delay analysis is necessary to respond to Mr Gibson's opinions. The defendants say that the plaintiffs' submission that Mr Gibson's reasoning discloses his view that delay analysis is required in order to displace the contemporaneous views of Lendlease as to likely completion dates (including for the NCX Project) conflates Mr Gibson's view with his instructed assumptions as to the approach taken by the project team. 6. The plaintiffs in their submissions oversimplify the distinction between a reported completion date on the one hand (which Mr Badala relied on in his opinions) and native program files on the other. The plaintiffs' case rests on the knowledge they say was held about the defendants' Engineering Business and its performance by eight individuals, and they point to nothing to indicate that any of those individuals saw, ought to have seen or had the ability to interrogate the level of detail that they now seek to be reviewed by Mr Thorpe. 7. Ultimately, the plaintiffs mischaracterise the nature of the evidence proposed to be given by Mr Thorpe, and in seeking to adduce it, after several attempts to refine their pleadings and delays in serving their evidence, they are seeking to instigate a new detailed factual inquiry, requiring new documents, a new expert, and a new field of expertise, on an issue which they always knew about but deliberately elected not to pursue in this manner at an earlier time. If this inquiry is allowed to be pursued, the defendants may need to brief a delay expert in response and put on new lay evidence from new project-level witnesses who are unlikely to still be employed by the defendant, wasting further time and money in the process. 8. The plaintiffs' submission that it is impossible to determine whether Mr Thorpe's evidence is "in reply" in advance of seeing his report is untenable, where enough is presently known about the evidence proposed to be given by Mr Thorpe (described above) to conclude that it is not in reply.
In relation to the burden, time and cost of production pursuant to the Original NtP, the defendants say that the more sensible or efficient way of identifying the Requested Programs referred to by the plaintiffs in their submissions is not detailed in any meaningful way, and it cannot be said that the burden is, as the plaintiffs suggest, merely "inconvenient". Moreover, the immense cost of discovery formerly given does not detract from the cost and burden that the defendants would be put to if compelled to discover the Requested Programs; if anything, it reinforces why the defendants should not be required to expend further time and costs at this advanced stage in the proceedings.
Finally, the defendants say that to the extent that the plaintiffs foreshadow some attempt to amend their case - having referred, in their submissions, to the "natural and appropriate" course of potentially amending their pleadings to ensure their alignment with the actual expert evidence - , that course is not one which is natural and appropriate or one to which the defendants will consent.

[27]

Defendants

In short, the defendants posit that the Alternative NtPs fail to cure the deficiencies identified by the defendants in the Original NtP; that the court should not order production in accordance with either the Alternative NtPs or the Original NtP; and that to the extent production pursuant to any part of the Alternative NtPs is ordered, the plaintiffs ought to pay the defendants' costs of compliance as well as the defendants' costs of the application.
The defendants state that their primary reasons for seeking to have the Original NtP set aside - including that the relevant documents are being sought for evidence that is not properly in reply, in order ultimately to re-frame the plaintiffs' case - apply equally to the Alternative NtPs. They say, in addition to these fundamental objections, that the Summary NtP lacks the requisite detail to enable the defendants to identify responsive documents and that compliance with the Detailed NtP remains burdensome and expensive.
Clarifying those submissions on the Original NtP that remain applicable to the Alternative NtPs, the defendants repeat their submissions on relevance, case management considerations, prejudice and necessity, as well as their contentions that: 1. The relevant documents are being sought as part of an impermissible attempt by the plaintiffs to serve further evidence in chief and then reformulate their case, at an advanced stage in the proceedings and against a lengthy history of default and amendment. The plaintiffs' efforts to yoke their foreshadowed further evidence to Mr Gibson's report are strained, misconceived and ought to be rejected. The defendants say that the following remarks directed by me to counsel for the plaintiffs at the hearing of the motion on 23 August 2024 are, in the context of the present application, critical and decisive (T17): You in-chief made a forensic decision that you would get Mr Badala to undertake the exercise that didn't include any expertise of the sort that you're now trying to introduce in reply. So you made a forensic decision, and the only thing that was commented upon in the reply evidence from Mr Gibson was that your chosen expert had not conducted such an exercise[.] 1. Mr Gibson, in his report, relies on assumptions provided to him and has identified those assumptions; does not rely on any relevant programming assumption; and does not advance any programming evidence (nor does any other expert). The appropriate course to be taken by the plaintiffs would be to attempt to show that any such (alleged) assumption provided to Mr Gibson about programming is not established by the evidence, rather than opening (purportedly in reply) a new factual inquiry not covered in the evidence to date.
Turning to the Summary NtP, the defendants submit that owing to the lack of detail in it, there is a risk that any material produced under the Summary NtP may not correspond with what Mr Thorpe seeks, and if multiple program versions and/or drafts are produced it is unclear how Mr Thorpe would be equipped to draw "definitive conclusions" from those documents in the absence of any context as to the circumstances in which those files may have been produced.
The defendants state that although the Detailed NtP is more specific and improves the defendants' prospects of identifying the individual documents the plaintiffs seek, compliance with it would be unduly burdensome and costly. They point to the following steps that the defendants would need to take, including obtaining access to project drives; examining the folder and file structure of each drive to identify an initial subset of potentially responsive folders and native files; providing those folders and files to the defendants for opening; reviewing potentially responsive files with the aid of appropriately qualified personnel using specialist software; where necessary, conducting a manual review of a given native file against a PDF; and transferring the native files to a database to enable production.
The defendants describe the plaintiffs' suggestions as to more efficient ways to identify responsive files as "speculative" and unlikely to be of assistance, noting that even if the title of a particular ".xer" file includes a date, this does not necessarily mean that document is responsive; that metadata recording the modification date of a given file may not be a reliable indicator of when the file was substantively modified; that the title of any given ".xer" file may not refer to any date or revision number; and that the quantity of ".xer" files in relevant repositories is presently unknown. The upshot of this is that the defendants would still be required to review individual ".xer" files to ascertain whether they respond to the Detailed NtP, without which review responsive files might go unidentified and therefore would not be produced.
Adding to the burden of production under the Detailed NtP, the defendants say, is the following: 1. The need to carry out the preliminary steps of restoring the KSD and GUN project drives from "cold storage"; identifying and interviewing individuals with knowledge of programming on each of the Projects; and engaging those individuals to assist with identifying folders that may contain documents responsive to the Detailed NtP. The defendants have produced evidence that these preliminary steps would take approximately four weeks, and potentially longer if it certain .xer files within the project drives have been stored as links to an archived database as opposed to self-contained files. 2. The necessary process for reviewing individual .xer files requires specialist software not presently accessible to the defendants' solicitors and only available to certain personnel within the defendants, and even with that software, opening a given file involves requesting and waiting for access to be granted by a third party. Following access being granted, the relevant software user would need to create a PDF version of the native file to enable the defendants' solicitors to ascertain whether its parameters match those in the Detailed NtP (for instance, its date, title, program number and revision number). Altogether, these steps would take an estimated period of between one and three weeks for each individual Project, depending on the number of files involved for each Project, which is not presently known. 3. Potential complexities, including where it is not apparent whether a PDF-generated file version of a native file, on its face, is captured by the parameters detailed in the Detailed NtP (e.g. date, program number and revision number), may give rise to the need for further meetings between the relevant software user and the defendants' solicitors. 4. A manual comparison of specific PDF files already discovered by the defendants to verify potentially responsive .xer files will need to be undertaken, and no automated or technology-assisted process has been identified to conduct that review non-manually. The necessary manual review process may involve thousands of line items per file, taking potentially several hours for each program file, and needing to be carried out for a number of files in order to ascertain a correct match.
In relation to the NCX Project, the defendants note that the Detailed NtP seeks program files that are "referenced in" some other document such as a report or email. Those subparagraphs that use this formulation, the defendants say, in many cases do not contain sufficient information for the defendants to identify whether any given document matches the one sought. Moreover, in respect of the NCX Project, some of the descriptions in the Detailed NtP are unclear as to the specific document sought or contain apparent inconsistencies. A further complexity for the NCX Project specifically (which was undertaken as part of the LLBJV) is the additional time needed to collect files relating to the project from a third party (joint venture participant), which might take a month or more. Also, the plaintiffs seek approximately 39 distinct files relating to the NCX Project in the Detailed NtP, with several of those predating the Relevant Period, in circumstances where the need for those files in light of the plaintiffs' ability to identify precisely which programs they seek from September 2017 onwards (in paragraph 5 of the Detailed NtP) is unclear. The defendants submit that for the foregoing reasons, which demonstrate the increased burden of complying with the Detailed NtP in respect of the NCX Project compared with the GUN and KSD Projects, even if the court were to order compliance with the Detailed NtP in connection with the GUN and KSD Projects, compliance should not necessarily also be ordered in respect of the NCX Project.
The defendants submit that the estimated time and cost of compliance with the Detailed NtP is in the realm of $113,500 over nine-and-a-half weeks for the KSD Project; $45,000 over seven weeks for the GUN Project; and $159,000 over between eleven-and-a-half and thirteen-and-a-half weeks for the NCX Project (with additional time likely to be required in the event the work was performed amid end-of-year shutdowns when relevant personnel may not be available for interviews or to assist with opening and reviewing .xer files).
The defendants reserve their position on objecting to the plaintiff's ability to rely on any evidence from Mr Thorpe or any other evidence that is based on new documents sought to be produced and any proposed amendments to the ACLS.

[28]

Plaintiffs

For reasons that will emerge from the below summary of the plaintiffs' submissions, the plaintiffs now contend that the court should order production in accordance with the Original NtP as opposed to either of the Alternative NtPs.
On the forensic relevance of the documents sought, the plaintiffs repeat their submissions in respect of the Original NtP. They also take issue with the defendants' presentation of my remarks at the hearing of the defendants' application on 23 August 2024 (T17, extracted above) as "critical and decisive", noting that the relevant extract elides important context, namely that I was there asking counsel for the plaintiffs for their response to arguments which had been put by the defendants, and misattributes those statements to me.
In response to the defendants' suggestion that the only appropriate course to be taken by the plaintiffs (instead of opening "a new factual inquiry not covered in the evidence to date") would be to attempt to show that any (alleged) programming assumptions provided to Mr Gibson are not established by the evidence, the plaintiffs say that different means exist by which a party to litigation may legitimately choose to test certain assumptions, including by seeking the production of documents, documentary and expert evidence in reply, and/or cross-examination.
The plaintiffs repeat their submissions in respect of the Original NtP on each of the following matters: the question of whether evidence to be given by Mr Thorpe based on the documents sought in the NtPs will be properly "in reply"; the relevance and necessity of the documents sought in the NtPs; case management considerations; and prejudice.
Noting that their intention in serving both of the Detailed NtP and Summary NtP was to expose the most cost-effective and least onerous approach to production, the plaintiffs state that the defendants have been unwilling to engage with the plaintiffs to agree on terms of production. On the projected costs of production, the plaintiffs have produced competing evidence including a detailed set of tables in response to the defendants' evidence regarding the estimated time and costs burden of compliance with the Detailed NtP. The plaintiffs' approach to costing, they say, involves consideration of whether some steps (as accounted for in the defendants' estimate) would in fact need to be taken under the Original NtP, rather than merely disputing the quantum assigned by the defendants to the performance of those steps.
The plaintiffs have created the following summary table comparing the defendants' estimated costs for production in compliance with the Detailed NtP with the plaintiffs' estimated costs for production in line with the terms of the Original NtP: Detailed Alternative NtP Original NtP Anticipated Timeframe Approx Cost Anticipated Timeframe Approx Cost KSD 9.5 weeks $113,500 7.5 weeks $54,500 GUN 7 weeks $45,500 5 weeks $27,250 NCX 11.5 to 13.5 weeks $159,000 7.5 to 9.5 weeks $74,750 Total 7 to 13.5 weeks $318,000 5 to 9.5 weeks $156,500

[29]

The plaintiffs say the difference in cost is by virtue of the fact that the most time-intensive and expensive steps identified in the defendants' evidence as needing to be done under the Detailed NtP are not necessary under the Original NtP. The plaintiffs set out their reasoning as follows: 1. The plaintiffs refer to the defendants' evidence and submissions to the effect that an employee of the defendants with access to specialist software and likely with the requisite programming knowledge will, as a preliminary step, need to extract each potentially responsive native program, convert it into PDF format and provide that PDF to the defendants' solicitors, following which the defendants' solicitors will review the PDFs to determine whether they are responsive to the parameters of the Detailed NtP, and (as a potential additional step, where necessary) meet with the employee of the defendants to confirm whether the corresponding native file is in fact responsive. 2. The plaintiffs question why the above process could not be abridged, for instance by having the relevant employee of the defendants perform the task of verifying whether a certain document is responsive, especially under the Original NtP where the only confirmations required are the relevant project and a date range. This would remove the need for the defendants' solicitors to review the PDF and then also potentially revert to the relevant employee of the defendants. The plaintiffs also note that the defendants' evidence assumes the need for a laborious, line-by-line comparison of PDF files with the relevant native files to "match" previously discovered PDFs, and observe that this step is ultimately unnecessary under the Original NtP. 3. The plaintiffs say the removal of these steps would result in a saving of two weeks and $47,000 for the KSD Project, two weeks and $12,500 for the GUN Project, and four weeks and $73,000 for the NCX Project. 4. The plaintiffs' evidence is that the costs of "quality control checks and management review of process (including obtaining instructions for production)" are likely to be materially lower (halved) under the Original NtP compared to the Detailed NtP, generating a saving of $12,000 for the KSD Project, $5,750 for the GUN Project, and $11,250 for the NCX Project.
In terms of additional reasons to prefer production under the Original NtP, the plaintiffs point out that production, so-ordered, would mean shifting the burden onto the plaintiffs to identify, from the collection of native files provided, the most relevant documents for use by Mr Thorpe, which burden they are content to assume. The plaintiffs submit that although the Original NtP is likely to result in the production of more documents than the Detailed NtP, this is not necessarily undesirable (as the materials that will be caught are the native project files for the Projects, all of which may be relevant or at least not entirely irrelevant), and indeed would reduce the risk of potentially relevant documents not being captured if the categories of documents described in the Detailed NtP do not correspond exactly with the relevant document held by the defendants.
In relation to the defendants' indication that they formally reserve their position as to future evidence sought to be adduced or amendments to the ACLS made by the plaintiffs, the plaintiffs maintain that those issues are arguments for another day and state that no reservation is required.

[30]

Defendants in reply

The defendants submit that the plaintiffs' position in now seeking production under the Original NtP, after conceding at the hearing before me on 23 August 2024 that it could be narrowed and serving the Alternative NtPs, demonstrates that the plaintiffs do not know precisely what they are seeking.
In response to the plaintiffs' submission that it is open to them to test certain assumptions by using documentary material, evidence in reply, or cross-examination, the defendants assert that they do not object to the plaintiffs pursuing any of those avenues, but that the plaintiffs' stated objectives - which they say amount to effectively seeking discovery in order to serve more expert evidence in chief rather than in reply - go beyond any of those permissible courses. The defendants state that if the plaintiffs' position is accepted, and they are permitted to adduce the foreshadowed evidence, the defendants would undoubtedly need to be afforded an opportunity in turn to adduce programming evidence, and that fact alone confirms that the plaintiffs are seeking the documents for the impermissible purpose of putting on evidence in chief, contrary to the court's orders stipulating service by the plaintiffs of evidence in reply.
The defendants reject the plaintiffs' suggestion that the defendants have failed to engage with the plaintiffs in relation to the Alternative NtPs and for the purpose of settling the terms of production, and describe such suggestion as an attempt to lay blame on the defendants for refusing to consent to inappropriate orders proposed and/or improper requests for production by the plaintiffs.
On the cost of production pursuant to the Original NtP or the Detailed NtP, the defendants say that their evidence should be preferred to that of the plaintiffs, noting that the defendants are the ones who will be required to perform any steps needed to comply with any production ordered; that the defendants' evidence on the costs of complying with the Original NtP was unchallenged; that the plaintiffs' assertions regarding those costs are belated and self-serving, and either incorrect or inappropriate; that the plaintiffs' evidence on the costs and burden of production are speculative and provide no firm basis for definitive conclusions on the matter; that the plaintiffs' evidence on technical matters is based on purported "experience" when the deponent has not established any relevant expertise to give that evidence; that the plaintiffs do not contest the defendants' evidence on costs for the Alternative NtPs; and that if actual costs are below the defendants' estimated costs, the defendants have proposed that the difference should revert to the plaintiffs.
In response to the plaintiffs' suggestions as to how the process of (and steps preliminary to) production might be abridged, including their indication that potentially responsive material could be produced without review by the defendants' solicitors or instructors, the defendants state that such suggestions are imprudent and unrealistic. They say that the plaintiffs fail to distinguish between certain employees of the defendants with access to the specialist software on the one hand and the defendants' solicitors on the other, the latter of whom are abreast of the issues in the proceedings, alive to possible issues in document disclosure in litigation, and capable of making forensic judgments including as to whether a certain document is responsive. The defendants emphasise that review of the documents by solicitors is necessary to ensure the defendants' compliance with its obligations to the court in respect of the Original NtP.
The defendants submit that the plaintiffs' assertion as to the reduced time and cost burden of compliance under the Original NtP rests on the plaintiffs' incorrect assumption that solicitor review would not be required, and once it is accepted that review of the documents by the defendants' solicitors is necessary, it is clear that the time and expense associated would not be "significantly lower" for the Original NtP. The defendants also state that the plaintiffs' assertion that manual line-by-line comparison is ultimately unnecessary lacks a proper evidentiary foundation, is bare assertion, and is contradicted by the defendants' evidence as to the necessity of this step. The defendants say, likewise, in answer to the plaintiffs' assertions that the costs of quality control checks and management review are likely to be materially lower, that those assertions are speculative, lack any cogent or reasoned basis, and are insufficient to displace the defendants' unchallenged evidence as to cost.
Referring to the plaintiffs' submission to the effect that to the extent the Original NtP is likely to result in the production of more documents than the Detailed NtP, that is not necessarily undesirable and indeed would reduce the risk of potentially relevant documents not being captured under the Detailed NtP, the defendants characterise this as a request for impermissible fishing which should be rejected, and say that it highlights problems with the Original NtP. They say, further, that although the plaintiffs have expressed their willingness to incur the burden of then identifying which subset of native programs among those produced are relevant to Mr Thorpe's analysis, the plaintiffs have not indicated how they would go about identifying relevant documents and distinguishing final programs from working drafts, how it would be more efficient or cost-effective, and how Mr Thorpe would be able to draw any definitive conclusions if provided with multiple versions or working drafts of programs.

[32]

Costs of the defendants' application

The defendants state that the plaintiffs should pay their costs of the application because: 1. if the Original NtP is set aside, or production pursuant to the Original NtP is otherwise not required, the costs of the motion should follow the event; 2. if production is ordered under the Alternative NtPs, it is relevant that the plaintiffs' concession that the Original NtP could be narrowed was only made towards the end of the hearing on 23 August 2024 (more than two months after the defendants first raised concerns about the breadth of production proposed to be sought by the plaintiffs, more than six weeks after the defendants raised the lack of specificity in the Original NtP itself, and only after the parties had incurred substantial costs in preparing evidence and submission in relation to the Original NtP); 3. if production is ordered under the Original NtP, it is relevant that it was only during the oral hearing on 23 August 2024 that the plaintiffs offered, for the first time, to pay the defendants' costs of compliance; and 4. if production is ordered under either the Original NtP or the Alternative NtPs, such production of any such may ultimately prove to be futile including if, for example, the plaintiffs are ultimately precluded from relying on Mr Thorpe's foreshadowed evidence on the grounds that it is not properly reply evidence and/or reformulating their case by reference to new evidence they should have adduced earlier.
The defendants add that alternatively, if production is ordered under the Original NtP and their submissions outlined above are rejected, the plaintiffs should at least pay the costs incurred by the defendants in responding to the Alternative NtPs since the plaintiffs have essentially abandoned the Alternative NtPs after putting the defendants to the expense of responding to them in detailed evidence and submissions.
For their part, the plaintiffs contend that the defendants' submissions as to the costs of the application should be rejected because, among other things: 1. notwithstanding their objection to the form of the Original NtP, the defendants ultimately conceded that it could be re-issued as a UCPR r 34.1(1) notice to produce in the same terms; 2. the defendants resist production altogether, on the basis of fundamental objections (relevance, case management considerations, prejudice and necessity) which occupied the majority of the defendants' submissions and have nothing to do with the terms of production; 3. if the Original NtP is set aside but production is ordered, the fact that the defendants address the Alternative NtPs in their submissions and as the subject of their application means that the defendants' application has not been successful on its professed footing; 4. if production under any of the NtPs is ordered, the defendants have failed in their application to resist production; and 5. in relation to the defendants' submission that if production is ordered under either the Original NtP or the Alternative NtPs costs should not follow since some potential uses of the requested documents may ultimately not be permitted, that argument is speculative, ignores other uses to which the plaintiffs might legitimately put the documents (e.g. cross-examination), and amounts to guessing at the outcome of as yet unargued future contests.

[34]

CONSIDERATION

In my opinion, the Original NtP must be set aside based on the confluence of factors I have set out below. As the Alternative NtPs are not pressed by the plaintiffs, I limit my consideration accordingly.
The documents sought in the Original NtP have no apparent relevance to any of the claims which are made by the plaintiffs in the ACLS. As the defendants rightly observe, the plaintiffs' case as pleaded principally concerns provisions the plaintiffs allege the defendants should have recognised at the Group level, and native program files recording the linkages between thousands of individual activities involved in the construction of the Projects undertaken by the Engineering Business within one segment of the defendants' global business can shed very little light on that question. Furthermore, the plaintiffs do not allege that in considering Group-level provisions, regard should have been had to program files (native or otherwise), or that relevant Lendlease personnel could or should have interrogated linkages in native program files. In those circumstances, the relevance of the Requested Programs to the issues in the case as disclosed by the pleadings and by the evidence filed to date (including Mr Badala's report, which does not itself contain any programming or delay analysis but instead merely uses likely completion dates for the Projects to inform his analysis) is altogether unclear.
That lack of forensic relevance itself provides grounds for setting aside the notice to produce, as recognised in Azzi v Volvo and Blacktown City Council.
I am, moreover, satisfied that the documents sought in the Original NtP are intended to be used by the plaintiffs to essentially introduce a new area of factual inquiry through the related application of new expertise, by a new expert, Mr Thorpe, to the Projects. The plaintiffs have expressly stated that the Requested Programs are needed to inform Mr Thorpe's foreshadowed evidence, being a report furnishing conclusions based on specialist construction delay analysis in respect of each of the Projects, including an assessment of how issues arising on each Project affected their progress. I agree with the defendants' submission that the plaintiffs' attempts to shoehorn Mr Thorpe's foreshadowed evidence into the four corners of the terrain covered by Mr Gibson's report so as to bring it within the realm of "reply evidence" are tenuous.
That is in circumstances where the opinions of Mr Gibson pinpointed by the plaintiffs as ones to which Mr Thorpe's proposed evidence will be responsive are in my view merely criticisms or questions raised by Mr Gibson about Mr Badala's methodology, based on what Mr Badala has not factored in or independently undertaken - namely, construction delay or programming analysis. Mr Badala's instructions expressly required him to address the time to complete the Projects and the effect of any delays in the Projects. Mr Gibson's observations that Mr Badala did not undertake any programming or delay analysis does not permit the plaintiffs to introduce that analysis in reply. Mr Gibson did not undertake any programming or delay analysis either. Mr Gibson had the same documents which were provided to Mr Badala.
New expert evidence that is based on new material and corrects that omission or deficiency in the plaintiffs' expert evidence and case in chief, as opposed to new expert evidence merely explaining why Mr Badala's use of the relevant likely completion dates was appropriate, and likely leading to a substantial revision of the whole suite of the plaintiffs' expert evidence in the process, cannot in my opinion properly be characterised as "evidence in reply". Such evidence is not offering a reply to or rebuttal of the defendants' expert evidence; rather, it functions or seeks to function (to use the phrase adopted by Bond J in Sanrus at [17]) as a new or alternative mode of proving the plaintiffs' case that ought to have been put in chief. Although the plaintiffs have made every effort to frame the prospective expert evidence for which they say the Requested Programs are needed as reply evidence, including by attempting to tie it to certain assertions made by Mr Gibson in his report, the authorities (including Adler) indicate that I must be attentive to substance over form in assessing whether evidence is or is not truly "in reply". This is a further factor to which I have given weight in my determination.
Further, applying the matters relevant to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings in s 56 of the CPA, the matters to which I must have regard in giving effect to that overriding purpose in s 57 of the CPA and the relevant matters to which I may have regard in s 58 of the CPA, also compels me to the conclusion I have reached.
At the outset I wish to observe that the plaintiffs' approach to the proper prosecution and progress of these proceedings is the antithesis of how a party is expected to conduct litigation that it has chosen to bring in the Commercial List of this court. To have taken over four years from when the proceedings were commenced in April 2019 until they filed the ACLS in June 2023 to formulate their case, whilst serving six proposed versions of the ACLS and flagrantly failing to meet deadlines for their amended case and evidence fixed by the court in the March 2022 orders, the August 2022 orders, the November 2022 orders, the December 2022 orders and the June 2023 orders, is at the very outer limits of delay by a party that the Commercial List of this court should permit. Without ignoring the defendants' own very minor contributions to the delay in the progress of these proceedings (being the late service of their lay and expert evidence in December 2023 through until March 2024 which extended to mere days and weeks), I must remark on the plaintiffs' particular consistent disregard for court-ordered deadlines.
The problems now created by the plaintiffs through the nonchalance they have displayed towards their duty to assist the court under s 56(3) of the CPA to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court are very real.
At the behest of the plaintiffs, the defendants have participated in two rounds of formal discovery pursuant to the Original Discovery Orders in May 2020 and the Further Discovery Orders in June and July 2021, producing over 56,000 documents at a cost of well over $5.5 million. I am mindful that against the backdrop of such extensive and expensive discovery, provided over three years ago, in conjunction with the significant burden (in terms of time, effort and costs) compliance with the Original NtP would now involve for the defendants, compelling production in accordance with the Original NtP would occasion serious injustice to the defendants.
The plaintiffs made forensic choices in the way that they formulated their case and in the evidence that they put forward to support their case in chief, which they had (and took) ample time to do. In all the circumstances, I am of the view that the dictates of justice and the overriding purpose require that the plaintiffs be held to those choices.
I wish to stress that parties like the plaintiffs in these proceedings who take in excess of four years to formulate their case, make forensic choices about the lay and expert evidence they wish to lead in support of it which causes the defendants as their opponents to respond to the issues raised by that evidence should not expect any indulgences from the court in seeking to retreat to take a different evidentiary approach at significant prejudice to the defendants in time, effort and costs. When those wasted costs become practically incalculable, not just from the costs of producing the documents sought on a notice to produce but also because the plaintiffs are patently seeking to use those documents to prepare yet more expert evidence in chief when the defendants have already provided evidence in response to the existing case in chief, the court should be very slow to give its imprimatur to litigation conducted in that fashion.
The difficulty of wasted time, effort and costs is exacerbated in this case because of the manner in which any revision to the conclusions reached by Mr Badala by reason of the proposed work of Mr Thorpe would in turn cause revisions to the conclusions of Mr Stone and Professor Zmijewski. It would be quite unjust to the defendants to cause them to have to revisit all of the complex evidence they have provided in response to the evidence of the plaintiffs so as to accommodate the new case in chief that the plaintiffs wish to make. I will not allow the plaintiffs to use the documents they wish to obtain under the Original NtP to serve that end.
The plaintiffs sought to rely on the delay in the proceedings which has been caused by the parties having to wait until the High Court determines the appeal before it on the separate question of this court's power to approve a notice to group members with the proposed settlement notation. The plaintiffs accuse the defendants of adopting a "hurry up and wait" approach because the proceedings are effectively in abeyance until the High Court's decision. But even though the parties have the benefit of time available to deal with any further production of documents, that does not cure any of the fundamental problems caused by the Original NtP - that it does not seek documents relevant to the pleaded issues, it does not seek documents that would assist the plaintiffs in providing evidence which is truly in reply and it seeks documents which will involve the defendants incurring yet further considerable expense and effort.
It is now well past the time for the plaintiffs to file and serve their lay and expert evidence in reply, which was ordered to be filed and served by 18 May 2024 in accordance with the June 2023 orders. I agree with the defendants' proposal that the plaintiffs be given a further 10 weeks within which to provide their reply evidence.
In relation to costs, I do not perceive any sound reason for departing from the general rule in UCPR r 42.1 that costs follow the event. The defendants have succeeded in resisting production and they should have their costs of the application.

At a glance

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Judgment (36 paragraphs)

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Legislation Cited (4)

Cases Cited (24)