MACMAHON CONTRACTORS PTY LTD -v- WOODSIDE ENERGY LTD [2008] WASC 271 (25 November 2008)

MACMAHON CONTRACTORS PTY LTD -v- WOODSIDE ENERGY LTD [2008] WASC 271 (25 November 2008) - WASC 2008 case summary — Zoe

[18]

The issues referred to herein will be amplified in written submissions which will be filed in accordance with the timetable referred to in 11(b) below.
The proper purpose of pleadings in a matter such as this will be in issue. The defendants adopt the view that the pleadings must identify with clarity the issues in dispute between the parties, particularly in a case which requires many witnesses and involves thousands of documents and in which expert evidence will be necessary. The plaintiff has taken the view that sufficient is pleaded in order to enable the defendants to plead and, separately, that it considers that the FASC and particulars provide the material facts and all necessary particulars of the case that the defendants are required to answer.
The plaintiff seeks to add a gloss to express time periods in the contract (a copy of which has already been filed), that it only had to comply with them 'as far as reasonably practicable', in the face of express terms in the contract to the contrary and without alleging any basis for the modification of the express terms.
The plaintiff pleads the implication of certain terms, alternatively, a proper construction of the contract in the same terms, which are contradictory of express terms in the contract, without alleging any material facts, or providing any particulars, in support of the implication or construction, other than the four corners of the contract.
The plaintiff alleges an oral variation of the contract in the face of a no oral modification clause and a non-waiver clause and without pleading any consideration moving from it to the defendants for the alleged modification of the contractual relations.
The plaintiff pleads an estoppel in unacceptably uncertain and ambiguous terms.
The plaintiff has failed to make the necessary allegations which would sustain a claim for an extension of time under the contract, or for delay or acceleration costs, and, in any event, such particulars which have been supplied in relation to such claims do not support it.
The plaintiff has not pleaded the necessary allegations to disclose a reasonable cause of action in respect of its claims for additional costs for variations under the contract. In particular, the plaintiff has not made the necessary allegations to establish that directions given by the first defendant gave rise to variations under the contract in respect of which it was entitled to additional payments; it complied with the notice and information requirements of the contract in relation to variations; or that the first defendant and it entered into variation instruments, as required by the contract, or the first defendant instructed it to proceed with the variations, notwithstanding the terms of the variations not having been agreed between them.
The plaintiff pleads that the first defendant has breached the term of the contract providing for the first defendant's determination of the final contract price (GC 13.9(c)), by not allowing certain claims in the final contract price, in circumstances where the plaintiff has failed to make the necessary allegations to sustain a reasonable cause of action for such claims under the relevant clauses of the contract.

[33]

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.

Most pleadings in complex cases, and this is a complex case, can be criticised from the perspective of technical pleading rules that evolved in a very different case management environment. In my view, the advent of contemporary case management techniques and the pre-trial directions, to which I have referred, should result in the Court adopting an approach to pleading disputes to the effect that only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.

In this case, I have reviewed the statement of claim and the objections to it and I have done so in the case management context to which I have referred. It is my view, that many of the objections which have been taken are pedantic and pettifogging in nature. In many cases, elucidating and resolving the objection would consume an amount of time and resources, which is entirely disproportionate to the benefit to be derived from that process in terms of the identification of the true issues which have to be met in the case.

In many cases, consideration and determination of each objection would give rise to precisely the type of time and resource wasting forensic exercise which the Commercial and Managed Cases List was created to discourage. That is not to say that buried within those voluminous objections there might not be a criticism that should be properly be seriously entertained, but having looked myself at the statement of claim, it is my view that any lawyer looking at that pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, would have no difficulty in ascertaining those matters [4] - [10].

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Judgment (81 paragraphs)

MACMAHON CONTRACTORS PTY LTD -v- WOODSIDE ENERGY LTD [2008] WASC 271 (25 November 2008)

MACMAHON CONTRACTORS PTY LTD -v- WOODSIDE ENERGY LTD [2008] WASC 271 (25 November 2008)

Legislation Cited (1)

Cases Cited (2)