DOWNER UTILITIES AUSTRALIA PTY LTD -v- ALINTA ENERGY TRANSMISSION (CHICHESTER) PTY LTD [No 2] [2023] WASC 1 (11 January 2023)

Downer has already formed the view that interference occurred

1. Alinta contends that the evidence shows that Downer has already formed the view that interference occurred.[119] Alinta contends that the fact that Downer has already formed this view 'belies the proposition that Downer does not have sufficient information to enable it to decide whether to commence proceedings against Alinta'.[120]
2. I do not accept this. Even if Downer has already formed the view that interference occurred, this would not mean it had sufficient information to enable it to decide whether to commence proceedings. Believing something and having sufficient material to enable a decision to be made as to whether to commence proceedings are two different things. A person may firmly believe he or she has been wronged, yet not have sufficient information to decide whether he or she should litigate.
3. During the hearing, Alinta accepted this. Alinta submitted, however, that Downer's belief that interference occurred was related to Downer's belief that it had evidence from which it could be concluded that interference had occurred.[121]
4. I accept that the two are related. Nevertheless, Downer does not dispute that it believes interference occurred.[122] Therefore, the evidence that shows this belief does not advance Alinta's position.

The Aconex Documentation needs no context and explanation

1. Alinta submits that the Aconex Documentation needs no context. It submits that Downer plainly has enough to plead a breach of the EPC Contracts based on the Aconex Documentation alone.[123]
2. I accept that the metadata shows that someone other than the Superintendent authored the Aconex Documentation. However, this does not exclude the real possibility of an innocent explanation (such as someone else merely formatting the document or creating a template).
3. Alinta does not contest this. Alinta's proposition is, rather, that Downer has enough to plead a case of breach of contract. Alinta says this is not a case where Downer needs to know the strength of Alinta's defences.[124] Alinta says that an example of a case where an applicant would need to know the strength of defences would be where there was a potential claim under an insurance policy, and the applicant wanted to know whether there was going to be reliance on a fraud exclusion to defeat the claim.[125] This example is analogous to the factual circumstances in Hancock. It will be recalled that Newnes JA considered that the putative plaintiff reasonably required, to make a decision whether to commence proceedings, documents relating to whether the insurance cover applied to the putative plaintiff's claim.
4. Alinta says that Downer also has enough to plead a case of misleading conduct during the performance of the contracts, as this too is based on the allegation that someone other than the Superintendent authored the Aconex Documentation.[126]
5. I do not accept that the Aconex Documentation needs no context. The metadata of the Aconex Documentation indicates that someone other than the Superintendent authored some of the Superintendent's documents. I will refer to a person so indicated as the 'Metadata Author'. I did not understand Alinta to dispute that a person who merely prepared and supplied a template would be a Metadata Author. In my view, Downer needs to know whether Metadata Authors have meaningfully contributed to the substance of a document before it can be said to have sufficient information to enable a decision to be made.
6. Before leaving this topic, I note that Alinta does not contend that the Overt Reference Documentation did not need context. This was, with respect, sensible. The Overt Reference Documentation does not include private communications or state that there have been such communications. Rather, it simply contains sentences that suggest that there may have been private communications. Downer does not know whether there were private communications, let alone whether, if there were such communications, the communications were innocuous.

1. Alinta further contends that Downer believes it has a prima facie case.[127]
2. Having regard to all of the material, and its context, I would infer that Downer believes:
   1. there have been private communications between the Superintendent and Alinta (or its contractors and agents);
   2. some documents purporting to be authored by the Superintendent were authored by Alinta (or its contractors and agents);
   3. it has a prima facie case of both of these alleged facts;
   4. if proceedings were instituted and Alinta did not adduce any evidence to explain or contextualise the alleged facts (being the party within whose knowledge this information lay), Downer may be able to establish that there had been interference by inference from those alleged facts, in the absence of explanation.
3. This does not necessarily mean that Downer has sufficient information to enable it to decide whether to commence a proceeding.[128] As noted by Hargrave J in B J Bearings, a party may still need information to know whether the cost and risk of litigation is worthwhile. In my view, this statement is simply a matter of logic, and is not attributable to the textual differences in the rules of the two jurisdictions.

Downer alleged that any private communication constituted interference

1. Alinta relied on the reasoning of Delany J in Vestas. Alinta contends that, like the plaintiff in Vestas, Downer had been contending that any private communication constituted interference.[129]
2. When this proposition was advanced by Senior Counsel for Alinta in oral submissions, this exchange occurred:[130]

ARCHER J: Do you think though, looking at the ... correspondence and notices as a whole, that their position is any private communication is a problem? I had interpreted it as being a couple of state - well, one statement I recall said that but for the most [part] it was - this is what we think, this is what we infer, this is what it looks like, tell us why we shouldn't think this. You're not telling us why we shouldn't think this. This is troubling.

DHARMANANDA, MR: Yes, that - that's probably a fair characterisation of it, with these observations, your Honour, which is some of the language is pretty trenchant.

ARCHER J: Can you take me ‑ ‑ ‑

DHARMANANDA, MR: I will take your Honour to that.

1. Senior Counsel then embarked upon a detailed exploration of the evidence. Much of that evidence is not relevant to Alinta's assertion that Downer alleged that any private communication would be interference. It appears that Alinta bases its assertion on references to private communications in the evidence of Mr Wood[131] and in the Urgent Request Letter.[132]
2. I have already explained why I do not accept that that evidence supports Alinta's assertion.

1. Downer submits that none of the documents in the Overt Reference Documentation or Aconex Documentation on their face establish material facts, nor do they provide information necessary to determine those material facts.
2. Downer offers as an example the two letters dated 29 July 2020 which are Annexures MPW-21 to Mr Wood's first affidavit.[133] Downer submits:[134]
   1. ... On their face, those letters suggest Alinta had engaged with the Superintendent as evidenced by the Superintendent writing that Alinta wished to use its time to clarify information in connection with Downer's extension of time claim. Interference is inferred. Those letters do not, however, evidence the material facts concerning interference with the Superintendent's independence. Material facts would include, for example:

(a) when the interaction between the Superintendent and Alinta occurred;
>
> (b) whether the interaction was written or verbal;
>
> (c) which individual(s) from Alinta interacted with the Superintendent; and
>
> (d) the content of what was said during the course of the interaction between Alinta and the Superintendent.

2. As to the Aconex Documentation which suggests authorship of Superintendent correspondence by individuals other than the Superintendent, what are the material facts that arise from identifying the metadata (including the author) of the documents? As far as Downer is aware, there is none. The metadata supports an inference that someone other than the Superintendent authored a document but further information is needed to plead that someone other than the Superintendent authored the document. 3. For example, Downer does not know why an individual such as Trevor Lombard, who Downer understands acted for Alinta alone, appears to have authored letters sent by the Superintendent. There may be a suite of material facts underpinning the reasons for the authorship. There may very well be a reasonable explanation - but Downer does not know this and so far no such explanation has been given.
3. Downer refers to the discussion in Kane Constructions Pty Ltd v Sopov[135] as to the circumstances in which a court may conclude there has been interference with a superintendent. In Kane, Warren CJ said that, in relation to the principal, 'interference will arise where there is an attempt to lead the superintendent astray in the interests of the principal; and where there is correspondence and communication of an improper character between the principal and the superintendent'.[136] Downer submits that determining either of these things in this case would require a consideration of the correspondence. Downer submits that this explains why Downer's position is, in effect 'I have concerns, but I need to see the correspondence to be able to form a view'.[137]
4. Downer further submits that, like the circumstances in B J Bearings, it is required to draw inferences from the documents which suggest that there must have been private communication. In addition, as in B J Bearings, there have been firm denials.[138]
5. Downer refers to Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd[139] to illustrate that not all private communications are improper, and much depends upon the content and context. Downer says that this is why it cannot properly determine whether to commence proceedings until it has the documentation it seeks.[140] Downer says, in effect, that until it knows the content of the communications between the Superintendent and the relevant parties on Alinta's behalf, it cannot assess whether there is a benign explanation or whether the communications were improper interference. It says it is impossible, on the information it currently has, to assess whether the communications impacted the Superintendent's ability to perform his role honestly, fairly and reasonably, and whether the Superintendent was affected or influenced by Alinta so that he could no longer be impartial.[141]
6. Downer notes that, in Vestas, there was a reference to 'HSF comments' (being a reference to the solicitors for the Principal) in the document properties of three documents issued by the Certifier when performing the Certification Role. There is nothing of that nature in the Overt Reference Documentation.
7. Downer says it also needs the documents to enable it to assess the extent of any breaches. Downer says it does not have sufficient information at the moment to assess whether it is worth commencing the proceedings. It says:[142]

[T]his is one of those cases where it is appropriate to provide pretrial discovery in relation to matters which go to testing the extent of the breach and the defences that could be made in response to the allegation.

1. Downer further submits that the evidence shows that it has not yet made a decision to commence proceedings.[143] Mr Wood has deposed that a decision has not yet been made.[144]

1. In the above discussion, I explained why I reached the following conclusions.
   1. I do not accept that the Aconex Documentation needs no context.
   2. Although Downer could be said to believe it has a prima facie case (in the sense I have outlined), this does not necessarily mean that Downer has sufficient information to enable it to decide whether to commence a proceeding.
   3. I do not accept, having regard to evidence as a whole (and its context), that
      1. Downer had been contending that any private communication constituted interference; or
      2. Downer believed that the potential causes of action were proved by the materials it currently has available to it.
   4. Further, I do not accept that Downer's submissions indicated that the Application was brought for a purpose other than to obtain sufficient information to enable it to decide whether to commence a proceeding.
   5. In relation to the Adjudication Letter, I accept that it was possible to infer from that letter that Downer believed that it was open to the adjudicator to find that the evidence supported a conclusion of lack of independence. However, having regard to that letter in its context, I do not accept that Downer believed that the potential causes of action were proved by the materials it had available to it.
2. I am satisfied that Downer has established that it has not been able to obtain sufficient information to enable a decision to be made as to whether to commence proceedings.
3. It is reasonably necessary that Downer know whether, among other things, the Metadata Authors contributed to the substance of the Aconex Documentation. It is reasonably necessary that it know whether or not there were private communications, and whether any such communications were innocuous. To adapt the words of Newnes JA in Hancock, no purpose would be served by proceedings against Alinta if the Metadata Authors simply created templates for the Aconex Documentation. No purpose would be served by proceedings against Alinta if there were not, in fact, private communications, or if any such communications were innocuous. Nor would any purpose be served by leaving it to Downer to discover these things through interlocutory processes after commencing proceedings. It is circumstances such as those that the rule is intended to avoid.
4. Accordingly, I find the fourth requirement to be established.

1. Alinta does not dispute that the other requirements of O 26A r 4 have been met in relation to each of the potential claims. Downer wants to commence proceedings against the potential party.[145] It has made reasonable enquiries for the purpose of obtaining sufficient information to enable a decision to be made as to whether to commence proceedings.[146] There are reasonable grounds for believing that the potential party has, or is likely to have, possession of documents that may assist the applicant in making the decision to commence proceedings.

Discretionary factors (Issue 4) Proportionality

1. As noted earlier, in BWS v ARV [No 2],[147] the Court of Appeal said that the notion of proportionality was central to the exercise of the discretion. It said that the cost and delay involved in the provision of the pre-action discovery as sought should be proportionate to the forensic benefit likely to be derived and to the value and importance or complexity of the subject matter of the contemplated proceedings.
2. Consistently with that language, Alinta submits that the burden of the discovery sought in this Application is out of proportion to the forensic benefit likely to be obtained and the value and importance of the proceedings proposed to be commenced by Downer.[148]

1. A partner of Alinta's firm of solicitors, Mr Golem, deposes as follows:[149]

I caused Ms Banovic [another solicitor in the firm of lawyers acting for Alinta] to contact persons at Alinta to ascertain the number of electronic documents that are likely to be available for review based on the personnel involved in the Project and relevant to the Proposed Categories that Downer seeks. I am informed by Ms Banovic and verily believe that, based on her inquiries of Alinta personnel, Alinta's preliminary searches have identified 433,401 potentially relevant electronic documents. Having been instructed by Ms Banovic and the filtering processes set out above, I estimate that the refined collection of electronic documents (excluding hard copy documents) to be reviewed is likely to be approximately 250,000 documents.

1. Mr Golem estimates that the cost to review that number of documents would likely be $2,406,280.

1. Downer submits that Alinta's estimate of the number of documents is inadequately explained. It submits:[150]

(a) Mr. Golem does not provide any search parameters he or Ms Banovic applied to ascertain [the figure of 433,401];
>
> (b) Mr. Golem deposes that "documents responsive to the Proposed Categories are likely to be held by at least 10 - 15 personnel"[151] without reference to: > > > (i) who those 10 - 15 personnel are;
> >
> > (ii) why it is "at least" 10 - 15 personnel who hold documents and any reason for that number increasing - that is, is Alinta not currently aware who interacted with the Superintendent? > >
>
> (c) Mr Golem does not explain why any of the documents would need to be assessed for privilege.

2. Downer also submits that Mr Golem does not explain how it was estimated that, of the 433,401 documents, 250,000 documents would need to be reviewed. Downer further notes that there is no indication of the inquiries that were made and the responses to those inquiries, and no indication of the volume of the document repositories.[152]
3. A partner of Downer's solicitors, Mr Blycha, affirmed an affidavit setting out his views of the scope of the discovery sought, and responding to a number of Mr Golem's claims.[153]
4. In particular, Mr Blycha said:[154]

No search parameters are provided for these resulting figures of potentially responsive documents or relevant custodians.

Without understanding the search parameters, it is difficult for me to provide detailed comments on the numbers or conclusions reached in the Golem Affidavit. However, based on my experience, those numbers and costs appear excessive. This is illustrated by some general calculations regarding documents responsive to each category. Based on the numbers outlined by Mr Golem, there are, on average, 43,340 potentially responsive electronic documents per category. Where many categories are defined by custodian and/or date range, this seems high. For example, it seems difficult to comprehend how 43,340 documents can be sent over a 10 Business Day time frame (categories 8 and 10) or how categories that are limited to the appointment, retainer or engagement of a specific third party or Superintendent (categories 3 to 6) can result in that number of documents.

It is also not clear to me how and why these potentially relevant 433,401 electronic documents could be refined to a database of approximately 250,000 electronic documents, but no further, without a detailed review of each individual document by the HSF legal team. In my experience, there are other possible electronic methods for the further reduction of this database before a detailed legal review seeking to identify issues like those of privilege, are required.

In my opinion, based on the wording of the categories of documents the focus of any inquiry should be the Alinta email accounts of the Superintendent, namely, the email accounts of Mr Timothy Knill and Mr Hamish Marshall. To the extent these individuals have a folder within their email account entitled 'Chichester Project', or similar, this should be a focus of any review. Further, to the extent the Proposed Categories require the production of documents from custodians other than the Superintendent, such people are likely to be identified by a discussion with the Superintendent.

[I]f the Superintendent has not acted improperly, and has corresponded through "formal channels" as he proclaims, there is no reason for Alinta to apply a broad brush to the categories. The question of who interacted with the Superintendent should not be a difficult question for Alinta to answer.

[The two people who were appointed as Superintendent] carried out specific certification functions under the EPC Contracts. As part of that role they and Alinta should be able to say with whom they spoke and from whom they received materials to execute their certification functions.

1. In addition, Downer contended that some of the correspondence sent by Alinta and the Superintendent after Downer raised its concerns suggests that there would be no documents relating to those concerns.[156] On further exploration of this contention, Downer accepted that, at most, a letter written by the Superintendent implied that there had not been any private communications with Alinta or Alinta's agents.[157]
2. Downer further submits that, on the facts, the categories of documents are confined to particular recipients and time periods. It set out in its submissions a table showing how each category was limited.[158] This submission was supported by Mr Blycha's affidavit.[159] Downer says there is no reason why those parameters could not be expressly noted in the category descriptions in an order for pre-action discovery.[160]
3. Downer further submits that, if the extent of the burden is considered too high, the categories could be limited to four people, being the two Superintendents (Mr Knill and Mr Marshall) and two of the consultants who appeared to have authored some of the Superintendent's documents (Mr Ghosh and Mr Lombard).

1. I make the following observations.
2. First, I do not accept Alinta's initial contention that the burden of compliance would be $2.5 million.
3. During the hearing of the Application, Alinta did not contest that Mr Golem's affidavit did not contain the detail that would allow the opinion to be evaluated or tested. It did not contest that this had been drawn to its attention by the affidavit of Mr Blycha and Downer's written reply submissions in the Application. It did not contest that it had not sought to file a further affidavit.[161]
4. Senior Counsel for Alinta said, in effect, that if the categories were limited as outlined by Downer, it could 'certainly not continue to say that [discovery would cost] two and a half million dollars, but it would be a sizeable amount, based upon what we know.'[162]
5. Second, a number of the categories are of very limited scope.
6. The number of people who could be inconvenienced in relation to all of the categories is said to be 'at least 10-15'.[163] In the absence of any basis to support that the numbers could be higher than 15, I consider I should treat the number as 10-15.
7. Alinta contends that category 1 is broad.[164] I agree that the scope of the type of documents sought is relatively broad and the time period is broad. However, it is limited in scope to documents (my emphasis):[165]

passing between Alinta and/or any Consultants and the Superintendent in connection with the exercise of any power by the Superintendent concerning:

(a) any certification made, or required to be made by the Superintendent under the EPC Contracts; and

(b) any assessment or determination made, or required to be made, by the Superintendent under the EPC Contracts.

1. I accept that the Superintendent is regularly required to exercise these powers during the life of the EPC Contracts. Nevertheless, the scope is limited to documents relating to the exercise of those powers.
2. Further, and more significantly, the scope of category 1 is limited to documents sent or received by the two Superintendents.
3. Alinta contends that category 2 is broad.[166] I agree that the time period and the number of potential people involved are broad. However, it is limited in scope to (my emphasis):[167]

All Documents prepared by Alinta or any Consultants for or on behalf of the Superintendent relating to any certification, assessment or determination issued by the Superintendent under the EPC Contracts.

1. I accept that category 2 as a whole is broad. However, its scope is well defined.
2. Alinta contends that category 5 is broad.[168] I do not accept this. It is limited to the documents prepared at and about the date on which each of the two Superintendents was appointed. It is limited to documents concerning the role of the Superintendent under the EPC Contracts.
3. Alinta also contends that category 6 is broad. However, this was based on an interpretation of its scope that was unintended.[169]
4. Alinta does not contend that categories 3 and 4 are broad.
5. Third, Downer would pay the reasonable costs of compliance.
6. Fourth, I accept that discovery would still burden Alinta. It would involve some time and effort by those required for interviews, and would intrude into Alinta's privacy.[170]
7. However, the number of people who could be inconvenienced is, in my view, likely to be limited to 10-15. It was not clear from Mr Golem's evidence the likely time burden that would be imposed on each of those 10-15 people. Downer submits that Mr Golem's affidavit suggests that it might take three hours per person.[171] Alinta did not contend this was incorrect.
8. In addition, the nature of the EPC Contracts and the evidence suggests that Alinta is a large and well-resourced organisation. Consistently with that, the evidence in this case suggests that the Aconex database is not unsophisticated.

1. Given the nature of the potential claims, it is not possible to estimate their likely value. The parties did not try to. Alinta submits that the value of the potential claims cannot be assumed to be the $15 million in liquidated damages.[172] Downer does not contest this, but notes that, if it succeeded in showing that the Superintendent's independence has been compromised, Alinta may lose its entitlement to retain the liquidated damages it has.[173] Although a precise estimate is impossible, I consider the value of the potential claims is likely to be in the millions.
2. As to importance, Downer submits the potential causes of action go to the heart of a contractor's right to impartial assessment of claims. Crucial rights hinge on the Superintendent's determinations of those claims. Since the Application was served, Alinta has recovered from Downer more than $15 million, alleged to be owed by Downer for delay liquidated damages under the EPC Contracts. Downer further submits[174] that a failure by a Superintendent to act in accordance with functions under a contract can have a cumulative and influential effect upon the performance of the contract.[175]
3. I accept these submissions. I note that Alinta did not suggest otherwise.

1. Downer submits that the documents sought are of critical significance. It submits that, without them, it will remain unclear whether there has been improper interference and the degree of any improper interference by Alinta with the certification functions. It notes that, if the Superintendent's impartiality has been compromised, any determinations issued by the Superintendent in purported fulfillment of the certification functions could be held to be void and of no effect, from which various remedies may follow.[176]

1. Having regard to all of these factors, I consider that the burden on Alinta in complying with an order for pre-action discovery would not be out of proportion to the forensic benefit likely to be obtained and the value and importance of the potential proceedings.

1. Alinta does not suggest that there are any other relevant factors weighing against the exercise of the discretion. Nevertheless, I will briefly discuss them.

The likelihood that a cause of action of the kind suggested will be found to exist

1. The circumstances do not permit an accurate assessment to be made as to the likelihood that the Superintendent Documentation will support one or more of the potential causes of action. Too little is known about the context. It may be that there is a benign explanation for the Overt Reference Documents and Aconex Documents.
2. Nevertheless, in light of the extent to which it appears that other people were authoring documents said to be written by the Superintendent, I consider that there is a reasonable likelihood that the Superintendent Documentation will support one or more of the potential causes of action.
3. This is a factor in favour of exercising the discretion.

Whether there is any other adequate means, available to the intending plaintiff, of obtaining the information which it seeks

1. There are no other means by which Downer could obtain the information.
2. This is a factor in favour of exercising the discretion.

The nature and confidentiality of the documents proposed to be obtained

1. Downer submits that the documents are unlikely to be confidential. Downer further submits that, to the extent that any documents to be produced are confidential, the level of protection will be higher than simply the implied undertaking, by operation of the Confidentiality Undertaking proposed in Schedule 2 to the Originating Summons.[177]
2. This is a factor in favour of exercising the discretion.

Whether the applicant is able to compensate the potential party for its cost of complying with the order

1. Downer is able to compensate Alinta for its reasonable costs of complying with the proposed discovery.
2. This is a factor in favour of exercising the discretion.

Whether there is any evidence of bad faith on the part of the applicant

1. Alinta did not contend that this was a relevant factor.[178]

1. Having regard to all of these factors, I consider that an order for pre-action discovery in relation to the potential Interference Claims is reasonably necessary to achieve the proper administration of justice. Accordingly, I would allow the plaintiff's Application for pre-action discovery in relation to those claims.
2. I will hear from the parties as to the appropriate orders to reflect these reasons. The parties should confer as to the wording of the categories of documents to reflect:
   1. the parameters set out in Downer's reply submissions;[179]
   2. the clarification provided during the hearing as to the scope of category 6;[180] and
   3. Downer's success in relation to only the potential Interference Claims.
3. I will also hear from the parties as to costs, but would invite the parties to have regard to the comments of Martin CJ (with whom Buss JA and Mitchell J agreed) in Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd.[181]

The Defendants or a Related Party (including any of their employees) and/or any agent acting on behalf of the Defendants.

Any person or entity engaged by Alinta to perform services in relation to the Project and/or the EPC Contracts, including Engenium (now Stantec) and E3 Advisory.

Has the same meaning as in order 26 r 1A of the Rules of the Supreme Court of Western Australia 1971 (WA).

Both of the Solar Farm EPC Contract and the Transmission Line EPC Contract.

Letter dated 7 October 2021 purportedly from the Superintendent to Downer regarding a request for the Principal to make submissions on Downer's claim for an extension of time and payment of delay costs (Ref. AETC-DOW-0174).

Letter dated 1 December 2021 from Ashurst both to Alinta Energy Transmission (Chichester) Pty Ltd and Alinta Energy (Chichester) Pty Ltd regarding the Chichester Solar Gas Hybrid Project.

Has the same meaning as in s 228 of the Corporations Act 2001 (Cth).

Has the same meaning as in the EPC Contracts, being Mr Timothy Knill and Mr Hamish Marshall, as each of the individuals appointed to the role of Superintendent.

EPC Contract for Chichester Solar Farm between Alinta Energy (Chichester) Pty Ltd and Downer Utilities Australia Pty Ltd dated 9 August 2019.

EPC Contract for Chichester Transmission Line between Alinta

Energy Transmission (Chichester) Pty Ltd and Downer Utilities Australia Pty Ltd dated 9 August 2019.

1. All Documents passing between Alinta and/or any Consultants and the Superintendent in connection with the exercise of any power by the Superintendent concerning:

(a) any certification made, or required to be made, by the Superintendent under the EPC Contracts; and
>
> (b) any assessment or determination made, or required to be made, by the Superintendent under the EPC Contracts.

2. All Documents prepared by Alinta or any Consultants for or on behalf of the Superintendent relating to any certification, assessment or determination issued by the Superintendent under the EPC Contracts.
3. All Documents passing within Alinta and between Alinta and Mr Knill and/or Mr Marshall relating to the appointment, retainer or engagement of Mr Knill and/or Mr Marshall to the role of the Superintendent in the following periods:

(a) 9 May 2019 - 9 October 2019 (inclusive), being the months before and after the appointment of Mr Knill to the role of the Superintendent; and
>
> (b) 20 December 2019 - 20 May 2020 (inclusive) being the months before and after the appointment of Mr Marshall to the role of the Superintendent.

4. All Documents passing between Alinta and/or any Consultants and Mr Knill and/or Mr Marshall concerning how each of Mr Knill and/or Mr Marshall were to perform the role of the Superintendent under the EPC Contracts, including any requests by the Superintendent as to how the Superintendent should exercise his functions under the EPC Contracts.
5. All Documents prepared or received by Alinta concerning the role of the Superintendent under the EPC Contracts, including documentation prepared or received concerning processes or procedures that Alinta could or would establish regarding the Superintendent's performance of his functions under the EPC Contracts, and/or the requirement for the Superintendent to maintain independence.
6. All Documents regarding the appointment, retainer or engagement by Alinta of Engenium (now Stantec) and/or E3 Advisory (and any persons engaged by those parties) in connection with the Project and/or the EPC Contracts.
7. All Documents passing between Alinta and/or any Consultants and the Superintendent regarding the Milestone Certificates, Payment Certificates and determinations referenced in paragraph 40 of the Letter dated 1 December 2021, including any preliminary comments or draft assessments of the items mentioned in paragraph 40 of the Letter dated 1 December 2021. Paragraph 40 of the Letter dated 1 December 2021, being a letter sent by Ashurst to Alinta requesting documentation relating to the functions performed by the Superintendent under the EPC Contracts referred to the following items and their metadata authorship:

(a) Payment Certificates signed by Mr Marshall as Superintendent;
>
> (b) Milestone Certificates, Payment Certificates and two determinations made by Mr Marshall as Superintendent in respect of extension of time claims made by Downer for inclement weather events Ref. AETC-DOW-0144 and Ref. AETC-DOW-0148;
>
> (c) The Certificate of Practical Completion for Separable Portion 1 for the Transmission Line EPC Contract signed by Mr Marshall as Superintendent; and
>
> (d) The Invitation Letter signed by Mr Marshall as Superintendent.

8. All Documents passing within Alinta and between Alinta and/or any Consultants and the Superintendent between 1 December 2021 and 10 December 2021 (inclusive) regarding the Letter dated 1 December 2021, including any correspondence or communications in connection with the request at paragraph 54 of the Letter dated 1 December 2021 which sought documentary evidence and an explanation that:

(a) demonstrates that the Principal (and its agents) has not sought to improperly influence the Superintendent in relation to the Superintendent's role under the EPC Contracts;
>
> (b) demonstrates that there has not been any private communications between the Principal (and its agents) and the Superintendent in relation to the Superintendent's role under the EPC Contracts; and
>
> (c) demonstrates that processes and procedures have been in place to ensure that the Superintendent has fulfilled his duty to act fairly, honestly, reasonably and independently when fulfilling functions under the EPC Contracts.

9. All Documents regarding the Invitation Letter (AETC-DOW-0174) dated 7 October 2021 and its preparation including all Documents evidencing communications within Alinta and between Alinta and/or any Consultants and the Superintendent regarding the Invitation Letter on or prior to 7 October 2021.
10. All Documents regarding the issuance of the Certificate of Practical Completion under the Solar Farm EPC Contract created between 15 November 2021 and 26 November 2021 (inclusive) including any Documents evidencing communications within Alinta and between Alinta and/or any Consultants and the Superintendent regarding this Certificate of Practical Completion. The Certificate of Practical Completion (SUP-AETC-0004) issued under the Solar Farm EPC Contract is dated 25 November 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] On 1 December 2020, Mr Knill was appointed to the different role of the 'Principal's Representative' (see EPC Contracts cl 40).

[2] Submissions in Support of Downer's Application for Pre-Action Discovery (Downer's Submissions) [11]. And see the affidavit of Matthew Phillip Wood affirmed 19 April 2022 (First Wood Affidavit) [43] - [46].

[3] Overt Reference Documentation is referred to in the First Wood Affidavit [47] - [64]. See also the description of some of these documents in Downer's Submissions [34] - [35] and [38].

[4] Aconex Documentation is referred to in the First Wood Affidavit [65] - [81] (and [56]) and the affidavit of Catherine Williams filed 16 June 2022. See also the description of some of these documents in Downer's Submissions [33] and [35] - [36].

[6] See the references in Downer's Submissions [39] - [41] and [45] - [46].

[10] Downer's Submissions [62] - [64].

[11] See Defendants' Submissions Opposing Plaintiff's Application for Pre-Action Discovery filed 5 September 2022 (Alinta's Submissions) [12] - [13] and ts 107.

[12] First Wood Affidavit [31] - [36] and [40].

[14] BWS v ARV [No 2] [2021] WASCA 62 [31].

[15] Alinta did not dispute this - see ts 157 - 158.

[16] BWS v ARV [No 2] [31] - [34].

[18] Sundance Resource Ltd v Austsino Resources Group Ltd [2022] WASC 108 [49], citing Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, 275 (Spigelman CJ); Jones v Great Western Railway Co (1931) 144 LT 194, 202 (Lord MacMillan).

[19] New South Wales Solicitors Mutual Indemnity Fund v Hancock Family Memorial Foundation Ltd [No 2] [2009] WASCA 146 (Hancock) [14] - [15] and [17].

[22] Alinta's Submissions [8] - [9] and ts 84.

[24] The first eight factors were identified in Central Exchange v Anaconda Nickel [2002] WASCA 94; (2002) 26 WAR 33 [82] - [83] (Steytler J, as his Honour then was) and endorsed in Kelbush Pty Ltd v ANZ Banking Group [2016] WASCA 14 (2016) 49 WAR 374 [120] (Mitchell J, as his Honour then was, with whom Martin CJ and Buss JA, as his Honour then was, agreed). Mitchell J in Kelbush [121] added an additional factor, which I have numbered as the ninth factor in the list.

[27] Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14 (S) (Kelbush Costs Decision).

[30] Kelbush Costs Decision [2] - [4] (Martin CJ), [8] (Buss JA, as his Honour then was), [9] (Mitchell J, as his Honour then was).

[32] See ts 158 in relation to the first requirement.

[34] Downer's Submissions [67] - [68] (see also [64]).

[38] Plaintiff's Responsive Submissions filed 16 September 2022 (Downer's Reply) [18].

[46] Hancock [69] - [70] and [73] - [74].

[47] Telstra Corporation v Minister for Broadband [2008] FCAFC 7; (2008) 166 FCR 64.

[48] Telstra Corporation [60]. See also Morton v Nylex [2007] NSWSC 562 [33].

[49] B J Bearings Pty Ltd v Whitehead [2016] VSC 44.

[52] Citing Optiver Australia Pty Ltd v Tibra Trading Pty Ltd & Ors [2008] FCAFC 133 (2008) 169 FCR 435, 443.

[53] Citing as an example United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133 [103] (and see also [28] - [36]). See also Australian Football League v Stadium Operations Ltd [2009] VSC 264 [62].

[57] Ajaka v Nine Network Pty Ltd (No 2) [2022] NSWSC 765 [48] - [51].

[60] Vestas - Australian Wind Technology Pty Ltd v Lal Lal Wind Farm Nom Co Pty Ltd [2020] VSC 554.

[62] Under the EPC Contract in this case, the 'Principal's Representative' and the 'Superintendent' were different roles - see cl 37 and cl 40.

[64] Vestas [95] - [99] - set out below.

[65] Vestas [86] - [88] and [95] - [101], set out below.

[70] See under the heading 'Legal principles'.

[76] And see Waller v Waller [2009] WASCA 61 [3] - [4] (Martin CJ).

[79] See First Wood Affidavit [43] - [44] and [111] - [115].

[80] First Wood Affidavit [111] and [115].

[81] Affidavit of Matthew Phillip Wood filed 16 September 2022 (Second Wood Affidavit).

[83] Alinta's Submissions [25] - [35].

[87] See the discussion in Australian Football League [57] - [63] and, quoted above, B J Bearings [19(4)].

[88] See, for example, First Wood Affidavit page 1104 [5].

[89] First Wood Affidavit page 1104 [7] - [8].

[91] Clause 33.7 - see the First Wood Affidavit page 154. See also cl 34 on page 155 - 156.

[92] Alinta's Submissions [40] - [41].

[94] Alinta's Submissions [41], referring to Downer's Submissions [101(b)].

[96] See Downer's Submissions [101] - [102] and ts 112 - 113.

[97] Affidavit of Ante Golem filed 6 September 2022 (Golem Affidavit), Annexure AG-22 page 151.

[99] See the discussion in Australian Football League [57] - [63] and, quoted above, B J Bearings [19(4)].

[101] Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304.

[104] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531.

[105] See ts 49 - 51. In Kirk, it was said that it is beyond the legislative power of any State parliament to enact a privative clause which ousts the supervisory jurisdiction of the Supreme Court with respect to jurisdictional error, and statutes must be read in a manner that takes account of the limits on the relevant legislative power - see Kirk [98] - [100].

[109] O'Donnell Griffin Pty Ltd v Davis [2007] WASC 215 [50]. See Downer's Reply [37] and ts 53.

[111] O'Donnell Griffin [50] - [52].

[113] Duro Felguera v Samsung [2016] WASC 119.

[119] Alinta's Submissions [23]. See also [35] and [39].

[127] See, for example, Alinta's Submissions [32].

[128] See, as set out earlier, Telstra Corporation [61], B J Bearings [19(2)], and Vestas [96].

[132] ts 137 - 138 and 146, referring to paragraphs 17, 30, 31 and 54 of the letter.

[133] First Wood Affidavit, Annexure MPW-21 pages 839 - 842.

[135] Kane Constructions Pty Ltd v Sopov (2006) 22 BCL 92; [2005] VSC 237.

[136] Kane Constructions [624] (citations omitted).

[139] Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003] FCA 174. See, in particular, at [93] - [99].

[141] See ts 110 - 111, Downer's Submissions [91] and Downer's Reply [31] - [33].

[144] First Wood Affidavit [116]. See also the Second Wood Affidavit [11] - [12].

[146] First Wood Affidavit [82] - [117].

[149] Golem Affidavit [40] and [42].

[153] Affidavit of Matthew Ian Blycha filed 16 September 2022 (Blycha Affidavit).

[154] Blycha Affidavit [13] - [16].

[156] Downer's Reply [41] and [46].

[157] ts 113 - 117. This was a letter dated 1 December 2021 from the Superintendent - see the First Wood Affidavit, Annexure MPW-36.

[158] Downer's Reply [48]. See also ts 101 and 106 - 109.

[171] ts 103, referring to the Golem Affidavit [24], but no doubt intending to also refer to [25].

[172] Alinta's Submissions [52] - [56]. See also ts 131.

[173] See Downer's Submissions [79] - [83], ts 63 and 101 - 102.

[174] Citing Kane Constructions [611].

[175] See Downer's Submissions [79] - [83].

[177] Downer's Submissions [88] - [90].

[178] See ts 120 - 121 in relation to Alinta's Submissions [57] - [58]