BETWEEN : LONDSDALE INVESTMENTS PTY LTD (ACN 091 245 144)

BETWEEN : OM (MANGANESE) LTD (ABN 60 097 091 506)

Practice and procedure - Pleadings - Strike-out application - Application for further particulars - Whether pleadings and particulars too general - Whether pleadings to be read with expert evidence - Whether pleadings or particulars should refer to expert evidence

Second Defendant (by Counterclaim) : Sparke Helmore

Fourth Defendant (by Counterclaim) : Sparke Helmore

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd [1987] FCA 84; (1987) 14 FCR 215

Charlie Carter Pty Ltd v The Shop, Distributive & Allied Employees' Association of Western Australia (1987) 13 FCR 413

MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271

Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167

1 BEECH J: The defendants by counterclaim (the Promet parties) apply to strike out paragraphs of OM (Manganese) Ltd's (OMM) amended defence and counterclaim dated 13 March 2009. Alternatively, the Promet parties apply for further particulars of those paragraphs. In partial response to the application OMM has filed an amended defence and counterclaim dated 28 May 2009. The application has proceeded by reference to the latter pleading.

2 In Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 Martin CJ said as follows:

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

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

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

In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment [4] - [7].

3 In MacMahon Contractors Pty Ltd v Woodside Energy Ltd [2008] WASC 271 [11] - [26], Templeman J summarised the principles relevant to a strikeout application in a matter in the CMC list. His Honour referred to and applied the statements of Martin CJ in Barclay Mowlem set out above. His Honour noted that in Barclay Mowlem the Chief Justice said that it remains an essential requirement for a pleading to fulfil its basic functions of identifying the issues, disclosing an arguable cause of action and apprising the parties of the case that has to be met. His Honour referred to the statement in Kendall & Curthoys, Civil Procedure Western Australia [20.0.3] that:

Pleadings are the backbone of civil litigation and are not merely formal... and they play an essential part in civil actions... because a trial is not at large but of the issues joined by the pleadings [25].

4 Templeman J was of the opinion that that statement is consistent with the decided cases. I respectfully agree.

5 A statement of claim must not plead allegations at too high a level of generality. A pleading must be sufficiently particular to conform with one of the central objects of pleadings, that is to inform the opposing party of the case that it must meet: Charlie Carter Pty Ltd v The Shop, Distributive & Allied Employees' Association of Western Australia (1987) 13 FCR 413, 417.

6 Whether a pleading is sufficiently particular is, as OMM submits, largely a matter of judgment and impression.

7 There are authorities to the effect that further and better particulars cannot rectify a pleading that is defective on grounds of its generality: see, for example, Charlie Carter Pty Ltd (419); Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd [1987] FCA 84; (1987) 14 FCR 215, 223. However to my mind, generally speaking, so long as a pleading read with its particulars sufficiently discloses to the opposing party the case that it must meet, the need for specificity in the pleading, as distinct from the particulars, need not always be applied with full vigour. In particular circumstances, however, it may be important that specific matters are pleaded as material facts rather than set out in particulars.

8 In overview, the plaintiffs (Promet companies) sue for services provided to OMM relating to OMM's manganese ore mining and processing facilities at Bootu Creek in the Northern Territory. OMM brings various counterclaims in response.

9 Paragraphs 17 to 29 of OMM's defence and counterclaim plead a claim of damages as a result of misleading and deceptive conduct of Promet 1 (the first plaintiff).

10 Paragraph 19 pleads that between February and June 2005 Promet 1 made representations that:

(a) the design work in relation to the plant was 90% complete;

(b) the design work in relation to the plant was two weeks from completion;

(c) the design work in relation to the plant was sufficiently advanced to enable the construction of the plant to be completed within six months from the date that OMM authorised Promet 1 to recommence work, paid outstanding invoices and made a down payment to Promet 1;

(d) the design work in relation to the plant was complete or substantially complete; and

(e) Promet 1 had the necessary skill and competence to design the plant in order to achieve design specifications and criteria established from time to time.

11 Paragraphs 21 - 24 plead reliance on these representations.

12 Paragraph 25 pleads the matters said to mean that the making of the representations in par 19 constituted misleading and deceptive conduct. Paragraph 25 is one of the paragraphs the subject of this strike out application. I will set it out later in these reasons.

13 Paragraph 28 pleads that Promet 1's misleading and deceptive conduct caused OMM to suffer loss and damage by reason of the matters pleaded in subpars (a) - (e). Subparagraphs (b), (c)(ii) and (d) of par 28 are the subject of this strike out application. Paragraph 28(b) alleges that various design work was defective. Particulars of the defective work are set out in pt A of sch 1.

14 Paragraph (c)(ii) relates to the ore processing capacity of the plant.

15 Paragraph 28(d) relates to delay in the commissioning of the plant said to have been caused by the Promet parties.

16 Paragraphs 30 - 39 plead a claim by OMM for breach of contract by Promet 1. That includes, in par 37, pleas that the design work was defective and that the Promet companies caused delay in this respect (mirroring those pleas in pars 28(b) and 28(d)).

17 Paragraphs 40 - 44 plead a negligence case against Promet 1. The alleged breaches mirror the complaints already made.

18 Paragraphs 45 - 49 plead a negligence case against Promet 2 (the second plaintiff). The allegations mirror the complaints of defective design, delay and inability of the plant to operate at the specified capacity.

19 I turn to the paragraphs the subject of the Promet parties' strikeout application.

20 These paragraphs all relate to the state of the design work as at 2 February 2005.

In making the representations pleaded in paragraph 19 herein, Promet 1 engaged in misleading and deceptive conduct in breach of section 52 of the Trade Practices Act 1974 (Cth) and section 10 of the Fair Trading Act 1987 (WA) by reason that:

(a) as at 2 February 2005, the design work in respect of the Plant was not 90% complete and was in fact less than 47% complete;

(b) as at 2 February 2005 the design work in respect of the Plant was not two weeks from completion and was in fact approximately 2 months behind schedule;

(c) between February 2005 and May 2005 the design work in respect of the Plant was not sufficiently advanced to enable the construction of the Plant to be completed within 6 months from the date that OMM authorised Promet 1 to recommence work, paid outstanding vendor invoices and made a downpayment to Promet 1;

(d) between February 2005 and May 2005 the design work in respect of the Plant was not complete or substantially complete.

22 In essence, the Promet parties complain that the allegations are made at too high a level of generality to adequately inform them of the case they must meet. They contend that:

(a) there is no criteria against which to test the percentage of completion alleged in par 25(a), and further facts are necessary to define or determine the alleged state of completion;

(b) the pleaded 'schedule' is not identified for the purposes of par 25(b); and

(c) par 25(c) is not supported by allegations identifying the state of the alleged design work, what further design work was required, and why the level the design work had reached was insufficient to enable completion of the plant within six months.

23 OMM submits that the Promet parties have not identified why it is necessary, in light of the expert evidence that has been exchanged or otherwise, for OMM to provide in the body of its pleading the further details that the Promet parties seek. The Promet parties submit that OMM's case should be clearly defined and confined by its pleadings and particulars, rather than having to be surmised from expert evidence served by OMM. As will emerge, in essence I accept the Promet parties' submission.

24 In a letter dated 12 June 2009 OMM have identified paragraphs of Mr Wedderburn's expert report (the Wedderburn report) on which it relies in relation to par 25. Further, OMM submit that issue appears to have been joined by the experts. The Promet parties' expert, Mr Williams, expresses the opinion that the design was approximately 80% complete. He also expresses other opinions as to the state of progress or completion of the engineering design work.

25 It is evident from the Wedderburn report (but not from OMM's pleading) that the percentage of completion of the design work is assessed by reference to the total number of man hours spent prior to 2 February 2006 as against total man hours spent to effect completion. I accept the Promet parties' submission that that is something which should be clear from the pleadings and particulars.

26 The pleading in par 25 is at a high level of generality. Standing alone, it does not adequately identify to the Promet parties the case that they must meet in the respects complained by them (as summarised above).

27 OMM's submissions make it clear that the pleading does not or is not intended to stand alone. OMM says its pleading must be viewed in the context of the expert evidence that has been exchanged. However, nothing in OMM's pleading or particulars so confines its case.

28 In my opinion, it is in the interests of justice and the efficient management of this litigation for OMM to better delimit its case. If the various parts of the expert reports identified by OMM mark out the boundaries of OMM's case, it should say so in its pleadings or particulars. That will provide the Promet parties with an appropriate identification of the case they must meet.

29 If OMM chooses to, it may confine its case by stating, in the pleading or in particulars, that it relies on the facts and matters set out in specified paragraphs of the Wedderburn report. Alternatively, it may plead facts or provide particulars:

(a) identifying the criteria against which the percentage of completion is tested, and the facts founding the alleged state of completion of 47% pleaded in par 25(a);

(b) identifying the relevant 'schedule' in par 25(b); and

(c) identifying the state of the alleged design work, the further design work alleged to be required, and facts supporting the pleaded conclusion that the then state of the design work meant that the construction of the plant could not be completed within six months from the date pleaded in par 25(c).

30 The Promet parties submit that, in some respects, the parts of the Wedderburn report relied on by OMM in relation to these paragraphs do not identify, or do not adequately identify, OMM's case. That submission invites a detailed consideration of the reasoning in the Wedderburn report. I have considered the relevant portion of the report. How OMM delimits its case is a matter for OMM. If it chooses to do so by reference to the specific portions of the Wedderburn report then, by definition, it will stand or fall on the merit of those aspects of the report. The merit of those parts of the report is a matter for trial, not for this application.

Capacity of the plant - paragraph 28(c)(ii)

(c) As a consequence of [the defective work pleaded in par 28(b)]:

(ii) the Plant in the period from 26 May 2006 to 30 November 2006 was not been capable of processing ore at the rates specified in the 'Process Design Criteria Revision 1' attached as Appendix B to E1184 Rev P7 ('Design Criteria');

Particulars

The feed rate of ore specified to be reclaimed by the scrubber of 159 tonnes/hour on the Shekuma ore and 202 tonnes/hour on the Gogo ore, together with the 10% design allowance used by Promet 1 to be used in the Plant design [meant] that the design criteria for the feed rate of ore specified to be reclaimed by the scrubber should have been 222 tonnes per hour, which was not achieved by the Plant.

32 Again, the Promet parties complain that the paragraph pleads conclusions at too high a level of generality without any supporting material facts.

33 This paragraph pleads that the plant's incapacity to produce ore at the specified rates was a consequence of the defective work pleaded in par 28(b). Whether it is sufficient to plead simply that one thing caused another, or whether further facts must be pleaded to establish the causal link, will depend upon the pleaded facts and circumstances: see, for example, Bond Corporation v Thiess (221 - 222).

34 OMM says in its letter of 12 June 2009 that in relation to par 28(c)(ii) it relies on pars 307 - 313 of the report of Mr Hearse. In that report, Mr Hearse compares the reclaim rate specified in the design criteria with the actual reclaim rate of the plant.

35 OMM also point to parts of the report of Mr Ooms served by the Promet parties. Paragraphs 777 - 780 of Mr Ooms' report relate to other factors that may have contributed to the process plant not operating according to the design criteria.

36 On the face of it, the fact that other factors may have caused or contributed to any failure or apparent incapacity of the plant to operate in accordance with the design criteria might be thought to underline the need for OMM to delimit its case. In particular it supports the need for OMM to identify:

(a) what it says the capability of the plant was (if it says the actual throughput reflected the limits of the capability of the plant it should say so); and

(b) any facts on which it relies in alleging that the pleaded defective work caused the plant's pleaded incapacity.

37 The Promet parties' submissions emphasise that the relevant parts of Mr Hearse's report do not refer to the capacity of the plant, but to its actual throughput. As I have said, I accept that that is so. That it is so would not, in my view, preclude OMM from relying on the stated parts of Mr Hearse's report to delimit its case. It will be a matter for resolution at trial whether the actual throughput of the plant reflected its inherent incapacity (as distinct from being caused by other matters) and, if so, whether that incapacity was caused by the relevant design work.

38 In my view, OMM should give particulars of the allegations in par 28(c)(ii):

(a) identifying what it alleges the capability of the plant was in the relevant period; and

(b) setting out any facts relied on in support of the allegation that the alleged incapability was caused by the defective design work pleaded in par 28(b).

39 Whether OMM gives those particulars by reference to identified paragraphs of Mr Hearse's report or otherwise is a matter for OMM.

Delay - paragraphs 28(d), 37(b), 42(b) and 47(b)

40 Paragraph 28(d) and its particulars are in these terms:

(d) Promet 1, further or alternatively Promet 2, caused the completion and commissioning of the Plant to be delayed by approximately 5 months 2 weeks.

Particulars

(i) practical completion and commissioning of the Plant took place on 26 May 2006;

(ii) the following items of design work or information caused delays to the fabricated steel work:

1. Promet 1, further or alternatively Promet 2, delays in providing issued for construction drawings;
2. Promet 1, further or alternatively Promet 2, revisions to issued for construction drawings after fabrication commenced;

(iii) Promet 1, further or alternatively Promet 2, failed to take any proper account of or undertake an assessment of the steel fabricators proposed steel substitutions for the fabrication of steel in China prior to authorising that fabrication could commence as follows:

1. The proposed steel substitutions were provided on 22 and 25 July 2005;
2. Authorisation to fabricate was given in Promet 1, further or alternatively Promet 2 on 25 July 2005;

1. All steelwork substitutions were subsequently rejected by Promet 1, further or alternatively Promet 2 on 25 October 2005, after assessment by Promet 1, further or alternatively Promet 2, the consequences of which was delay in completion of steel fabrication caused by the need to refabricate or rectify rejected steelwork;

(iv) Promet 1, further or alternatively Promet 2, failed to provide start up assistance and engineering support for shop detailing in China prior to authorising fabrication commencement as follows:

1. Promet 1, further or alternatively Promet 2 was, pursuant to clause 3.1.1(d) of E1184 Rev P7, responsible for engineering support for shop detailing in China;
2. Engineering support for shop detailing in China included responsibility for ensuring that the shop detailing and fabrication proceeded with current design drawings and that any new or revised design drawings were brought to the attention of the shop detailers and fabricators (drawing reconciliation):

1. Authorisation to fabricate was given on 25 July 2005;

1. Promet 1, further or alternatively Promet 2 allowed steelwork fabrication to proceed in the absence of any start up assistance and engineering support the consequence of which was delay in completion of steel fabrication caused by the need to refabricate or rectify rejected steelwork based upon unreconciled design drawings.

41 Paragraph 37(b) pleads, in substance, that the Promet companies' delay in completing the design work in respect of the plant and in issuing information in relation to the design caused delays to the fabrication of steel work associated with the plant, which in turn delayed the completion and commissioning of the plant by approximately five months and two weeks. The particulars of par 28(d) are repeated.

42 Paragraphs 42(b) and 47(b) correspond with par 37(b).

43 The Promet parties' submissions in relation to these paragraphs were addressed to the amended defence and counterclaim dated 13 March 2009.

44 Some of the particulars of par 28(d) of that earlier pleading have been deleted and further particulars have been provided under par 28(d)(iii) and (iv) in the amended defence and counterclaim dated 28 May 2009.

45 The Promet parties complain that the particulars of par 28(d) are conclusions without any plea of the underlying facts said to support those conclusions.

46 There seems to me to be force in this contention as regards subpar (ii). In my opinion, OMM should give particulars of:

(a) which issued for construction drawings were delivered late, and when they were delivered;

(b) when those drawings should have been delivered;

(c) any facts relied upon in support of the allegations in (b) above; and

(d) what revisions were made to the drawings and when.

47 I consider that the Promet parties are entitled to have OMM's case in these respects made clear in a way which confines OMM's case.

48 Again, if OMM so chooses, these particulars may be given by reference to identified parts of expert reports. Any insufficiency of the expert reports, as submitted by the Promet parties, will be a matter for resolution at trial.

49 The recently added particulars (iii) and (iv) of par 28(d) seem to me to sufficiently identify OMM's case in those respects. The Promet parties' submissions do not point to any specific aspect of these paragraphs that is said to be too general.

Defects - pars 28(b), 37(a), 42(a) and amended schedule 1, items 1, 4, 14, 15 (or 8) and 23

50 Paragraph 28(b) pleads that the HWE design work, and the work performed by the Promet companies, was defective. Particulars of the defective work are set out in pt A of schedule 1 to OMM's pleading. I refer only to those paragraphs the subject of complaint.

51 Item 1 is a general allegation that the Promet companies designed the plant without any or any adequate consideration of the likely characteristics of the feed ore. Six more particular allegations, (i) - (vi), are set out in the following terms:

Ore Characteristics

Promet 1, further or alternatively, Promet 2, designed the Plant without any or any adequate consideration of the likely characteristics of the feed ore:

(i) failed to attend the Bootu Creek site to investigate the ore characteristics and ore type;

(ii) failed to investigate and take into account the moisture content of the ore;

(iii) failed to investigate and take into account the likely clay and fines content of the ore;

(iv) failed to take into account the flow characteristics of the ore;

(v) failed to prepare a process design criteria of sufficient detail to adequately describe the process conditions and ore characteristics; and/or

(vi) failed to warn OMM of the likely or reasonably possible consequences of failing to undertake the investigations and take account of the matters referred to above.

52 Again, the Promet parties complain of the generality of these allegations. I accept that submission, in the sense that I consider further particulars should be given.

53 In (i) to (iv), the 'ore characteristics', 'moisture content', 'likely clay and fines content' and 'flow characteristics' should be particularised. Facts to support the allegation that the clay and fines content in (iii) was 'likely' should be identified.

54 As to (v), OMM should identify the characteristics of a process design criteria that was 'of sufficient detail to adequately describe the process condition and ore characteristics'.

55 As to (vi), particulars should be stated of the warning that OMM says should have been given.

56 These particulars, if OMM so chooses, can be given by reference to the expert evidence.

57 Insofar as the Promet parties complain that schedule 1 contains allegations that are in effect material facts which, consequently, should be pleaded in the body of the statement of claim, I do not accept that contention. The procedures of the court are not inflexible. See, for example, Murchison Zinc Company Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167.

58 Item 4 of the schedule states that the residence time of ore in the scrubber was in excess of the design criteria, resulting in there being excessive scrubbing of the ore resulting in lump attritioning and scrubber overloading. It is then said that the defect was caused by the failure on the part of the Promet companies to:

(i) conduct a review and/or commission a review of the scrubber to be utilised in the Plant design to ensure that the scrubber was able to receive and scrub the likely feed ore without overloading or bogging;

(ii) to advise OMM of the outcome of that review;

(iii) to then recommend steps to be taken to address any issues arising from that review in terms of the ability of the scrubber to meet the Process Design Criteria.

(a) the residence time of the ore in the scrubber according to the design criteria;

(c) what the review referred to in subpar (i) would have revealed; and

(d) what steps should have been recommended under subpar (iii).

60 Item 14 states that the design of the ROM bin did not take account of the likely moisture content and presence of fines and clays in the feed ore, resulting in blockages and restrictions in feed flow.

(b) any facts relied upon in alleging that such moisture content was 'likely'; and

(c) the aspect(s) of the design that failed to take into account the likely moisture content and presence of fines and clays.

62 Item 15 (or 8) states that the location of the rockbreaker as designed could not access the key locations required to break rocks in the crushing circuit of the plant.

63 Consideration of the parts of the expert reports referred to in OMM's letter of 12 June 2009 suggests that there is an issue as to what are 'key locations'. Mr Hearse says (par 482(a)) that critical areas included the plate of the feeder beneath the ROM bin as well as the jaws of the jaw crusher. (In pars 1048 and 1051 of Mr Ooms' report he expresses a different opinion.) I accept the submission of the Promet parties that OMM's case as to what are the 'key locations' should be identified in particulars.

64 In my opinion, the 'key locations' should be identified. Otherwise, the existing particulars are sufficiently specific.

65 Item 23 states that the Promet companies incorporated into the design of the plant a crushed ore stockpile and reclaim system which was unsuitable having regard to the likely moisture content and flow characteristics of the feed ore. That is said to have had the consequence that the system did not reclaim ore for delivery along conveyor CV04 to the scrubber. The rectification cost claimed is an amount exceeding $4.1 million.

66 Again, the issue with item 23 is the generality. What is the likely moisture content? Why is it likely? What are the likely flow characteristics? Why are they likely? OMM should give particulars of:

(c) in the case of each of (a) and (b) above, any facts relied on in support of the allegation that that was likely;

(d) the aspect(s) of the crushed ore stockpile and reclaim system that was unsuitable (having regard to the likely moisture content and so on); and

(e) any facts relied on to suggest the conclusion in (d) above.

67 For the reasons I have given, I would order OMM to provide further particulars of pars 25(a) to (c), 28(c)(ii), par (ii) of the particulars under par 28(d), and items 1, 4, 14, 15 (or 8) and 23 of schedule 1, to the extent I have explained in pars [29], [38], [46], [53] - [55], [59], [61], [64] and [66].