//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2008] VSC 622
procedural. The Court ordered (inter alia) that: the plaintiff file and serve witness statements; simultaneously file and serve amended summary particulars substituting Schedules A, B and C, with amended...
Downer sued Iluka for large sums including 73 variation claims. Iluka applied to strike out or amend particulars as inadequate. Vickery J found the schedules described the subject matter sufficiently for discovery but crucially omitted, in many variation claims, particulars of the required contractual 'direction' from Iluka; provisional sum and extension of time claims also lacked sufficient contractual/legal basis in places. Rather than strike out, the court ordered a case-management remedy: Downer must file witness statements and, at the same time, serve amended summary particulars substituting Schedules A, B and C that specify the directions and contractual/legal bases, with further timetabling and discovery directions (see [17]–[23]).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,804 words · generated 16/07/2026
Downer EDI Mining Pty Ltd (Downer) contracted with Iluka Resources Ltd (Iluka) to design, procure and construct mining and processing facilities under a principal lump-sum contract (CO555). Downer also performed earlier schedule-of-rates contracts (CO354 and CO521) and subcontracted parts of the works. Disputes arose and Downer commenced proceedings seeking approximately $70 million, including some 73 asserted variation claims totalling about $33.27 million. Downer filed an amended statement of claim dated 21 December 2007 that included Schedules A, B and C purporting to particularise the variation, provisional sum and extension of time claims (see [1]–[8], [16]).
No linked legislation citations have been extracted yet.
Iluka applied under rule 23.02 of the Rules of Court contending the particulars in those schedules were deficient. The hearing was before Vickery J on 4–5 August 2008. The central practical question was whether the particulars provided fair notice of the case Iluka had to meet and whether essential prerequisite facts had been pleaded, particularly the contractual precondition for a variation claim under general condition clause 40 of the contract, which required a direction from Iluka (see [9], [12]–[13], [17]).
Vickery J found that, while Schedule A set out the subject matter and amounts for each variation claim sufficiently to allow discovery and to enable a rudimentary defence, it did not adequately specify the necessary prerequisite, the particulars of the direction from Iluka for each variation (see [16]–[17]). Schedule B (provisional sums) and Schedule C (extensions of time) were also, in some instances, deficient because they failed to identify the precise contractual or legal basis upon which the claims were made (see [18]–[19]).
Rather than ordering striking out or immediate detailed particulars, the judge exercised active case-management powers under Practice Note No. 1 of 2008 and the Rules of Court. The court directed that Downer file and serve witness statements and, at the same time, serve amended summary particulars substituting Schedules A, B and C. The amended particulars were to summarise the facts relied upon to prove each claim, specify the directions (for variations), define the contractual basis for provisional sum claims, and set out the contractual and legal basis (including central case law) for each extension of time claim. The order included timetabling for defence, replies, discovery, and re-listing for further directions (see [20]–[23], [25]–[29]).
The court’s reasoning rests on three connected pillars.
First, the purpose of pleadings: Vickery J restated the conventional functions of pleadings, defining issues for decision, giving fair notice, setting limits for discovery and evidence, and recording the dispute’s ambit ([10]). Particulars must therefore disclose the facts necessary to make out the claim.
Second, the contractual rule governing variations: The contract’s general condition clause 40 granted entitlement to claim variations but imposed preconditions, including that the principal must have given a direction to undertake the variation. The definition of 'direction' in the contract was wide, but it remained a precondition; accordingly, particulars must specify the facts establishing that precondition where it is essential to entitlement ([12]–[13], [17]).
Third, active, proportionate case management: Practice Note No. 1 of 2008 (which the parties agreed should apply) directs judges to manage building disputes actively, to promote efficient, proportionate use of resources, and to discourage procedural disputes out of proportion to the issues ([11], [21]–[22]). Taking that into account, Vickery J chose a pragmatic route. The judge rejected a binary choice between accepting the existing particulars as adequate and forcing immediate and potentially wasteful micro-particularisation. Instead, he directed the plaintiff to align particulars with the evidence by filing witness statements and amended summary particulars at the same time. This approach addresses the deficiency (lack of pleaded directions and legal bases) while promoting efficiency, focusing the parties on the central issues, reducing the need for further pleading disputes and lowering costs ([25]–[29]).
The court therefore balanced pleading rigour against proportional case management. It required sufficient particularisation to give fair notice of the case and to identify prerequisite facts, but implemented that requirement through structured timetabling and a requirement that the particulars be produced in summary form contemporaneously with witness statements so that particulars reflect the evidence to be led (see [23], [26]–[27]).
Before this judgment, established principles governed the adequacy of particulars: pleadings must fairly and sufficiently identify the facts on which a party relies so the opponent can prepare a defence and the court can determine the issues. Rule 23.02 allowed striking out or amendment where pleadings failed to disclose a cause of action or would prejudice a fair trial. Practice Note No. 1 of 2008 emphasised active judicial management and proportionality in building and construction disputes (see [9], [11], [21]–[22]).
Downer EDI Mining Ltd v Iluka Resources Ltd does not alter the substantive requirements for particulars. Rather, it exemplifies and clarifies how those requirements should be enforced in a major construction dispute subject to modern case-management expectations. The decision shows that:
Post-Downer, practitioners should expect courts to prefer case-managed, evidence-aligned amendments to pleadings over piecemeal pleading skirmishes, particularly in large, document-heavy construction cases where Practice Note principles apply.
Paragraph 10: "I accept that the purposes of pleadings are to serve at least four purposes..."
Plain English: Pleadings must state what the dispute is about, warn the other side what they must defend, limit the scope of litigation for discovery and evidence, and record the boundary of the dispute.
Paragraph 17: "Although the subject matter of each claim is detailed ... the particulars fail to adequately specify the necessary prerequisite ... a direction emanating from Iluka in each case."
Plain English: Even though each variation claim shows what was done and the money claimed, the particulars did not say whether Iluka actually ordered the extra work in each case, which the contract requires for payment.
Paragraph 19: "Schedule C ... in a number of cases suffers from the deficiency that the precise contractual or legal basis ... is not specified."
Plain English: For some extension of time claims, the pleadings did not say clearly which contract clause or legal principle supports the claim, so Iluka could not fairly know what to answer.
Paragraph 23 (orders regarding amended Schedule A): "The amended schedule A particulars shall be in summary form and will summarise the facts relied upon to prove each variation, including the particulars of the directions given ..."
Plain English: The court ordered Downer to prepare a short, clear summary for each variation claim showing the facts it will use and, critically, who gave the instruction that led to the variation.
Paragraphs 25–29 (advantages): "The procedure will ... produce particulars which will accord with the evidence ... be of actual use in the trial ... avoid considerable expense ... encourage focus on main issues ..."
Plain English: The judge explained that producing particulars together with witness evidence will make the trial easier and fairer, reduce wasted costs, and help everyone concentrate on the real disputes.
This decision is specifically relevant where:
Practitioners should anticipate similar orders where pleadings are factually detailed as to amounts and subject-matter yet leave out critical legal or contractual prerequisites. The court will favour an answer that ties particulars to the evidence to be relied upon.
This judgment is a trial-judge, case-management decision in the Supreme Court of Victoria. It illustrates an approach rather than establishing a novel legal principle over broad precedence. Later courts considering pleading adequacy in construction disputes and invoking Practice Note No. 1 are likely to regard this decision as supportive authority for:
Because this is a single-judge interlocutory decision, its persuasive weight depends on the similarity of facts and the judge’s alignment with Practice Note objectives. In practice, courts continue to balance pleading precision against proportionality, and Downer is an example of that balance in action.
Level of detail required in summary particulars: The court required "summary form" particulars detailing directions and contractual/legal bases. What precisely satisfies "summary" remains context-dependent. Future disputes may require clarification on the minimal factual content necessary to demonstrate a direction where the contract defines 'direction' widely.
Proof versus pleading: The order ties particulars to witness statements to ensure alignment between pleaded case and evidence. There remains an unresolved tension in some contexts between the sufficiency of particulars and the evidence actually led; subsequent judges may differ on how strictly to police minor variances between particulars and witness evidence.
Use in different jurisdictions and case types: Practice Note No. 1 is Victorian and tailored to building disputes. The extent to which this procedural approach is accepted in other Australian jurisdictions or in non-construction commercial disputes requires assessment by later authorities.
Interaction with discovery burdens: The judgment accepted that existing particulars were sufficient for discovery but required added particulars of preconditions. How courts will balance discovery burdens against the need for detailed pre-trial particulars in massive document productions remains to be tested.
Sanctions for non-compliance: The case did not litigate consequences if the plaintiff fails to provide adequate amended particulars in summary form. Future decisions may set out consequences, including potential strike-out, costs penalties, or limitation on reliance at trial.
Concluding practical note: In construction litigation, plead both the substantive facts (what was done, when, and the amounts) and the contractual preconditions to relief (who gave directions, the contractual clause relied upon, and the legal basis for extensions of time). Expect courts to require particulars that align with witness evidence and to order proportionate, case-managed remedies where deficiencies appear.
PRACTICE AND PROCEDURE - Building Case - Particulars of Statement of Claim - Purpose of Particulars - Provision of Witness Statements sequentially - Summaries of facts ordered with delivery of Witness Statements including further particulars.
1 This proceeding is large in scale. It promises to be extensive in factual detail and rich in legal analysis. The background facts which give rise to this dispute are as follows: the disputes have arisen between the parties in relation to what is called the Douglas Mining Project. This was a contract governed by a contract, CO555, dated 30 July 2004 which by its terms was said to be effective on 1 July 2004.
2 The company, Downer EDI Mining Pty Ltd ("the plaintiff Downer") was engaged to design, procure and construct a mining unit plant and a wet concentrator plant at the Douglas Mine Centre near Balmoral which is situated approximately 75 kilometres southwest of Horsham, and a mineral separation plant at Hamilton. The agreed contract lump sum was $197,848,930. Prior to entry into the principal contract the position was that on or about 21 August 2003 Iluka Resources Ltd ("the defendant Iluka") awarded another contract to Downer, numbered CO354. This was a contract awarded on a schedule of rates basis to prepare a detailed feasibility study to enable Iluka to determine whether or not to proceed with the project.
3 Further, on or around 8 January 2004 another contract was entered into known as an advanced works contract numbered CO521. This was also awarded to Downer by Iluka on a schedule of rates basis. The contract was to perform, amongst other things, advanced works including earthworks, concrete works and detailed design.
4 For the purpose of this contract on about 22 March 2004 Downer awarded a schedule of rates subcontract to a subcontractor, Abigroup Contractors Pty Ltd, in relation to the earthworks. Downer also entered into another subcontract on or about 17 May 2004 whereby it awarded a schedule of rates subcontract to Fitzgerald Constructions Australia Pty Ltd to undertake the design, supply, delivery and construction of various civil works for the project.
5 The litigation between the parties, Iluka and Downer, commenced in September 2007 when an application was made by Downer to restrain Iluka from calling upon security provided by Downer to Iluka under the principal contract. Following that a generally endorsed writ was issued by Downer on 4 October 2007.
6 The matter came before Habersberger J for directions on 26 October 2007. Pursuant to directions given on that day, Downer was to file and serve an amended writ and statement of claim by 30 November of that year and Iluka was to file and serve its defence and any counterclaim by 11 February of this year.
7 Following negotiations between the parties, the plaintiff Downer produced a proposed amended statement of claim which was dated 21 December 2007. This statement of claim included schedules A, B and C which purported to provide particulars of the allegations in the statement of claim.
8 The claims of the plaintiff pursuant to its writ and statement of claim amount to approximately $70 million. The defendant Iluka complains of alleged deficiencies in the particulars contained in the schedules provided with the statement of claim, being schedules A, B and C.
9 The defendant brings this application before the Court pursuant to rule 23.02 of the Rules of Court which relevantly provide as follows:
Where a pleading or any part of a pleading (a) does not disclose a cause of action or (c), may prejudice, embarrass or delay the fair trial of a proceeding, the court may order that the whole or part of the pleading be struck out or amended.
10 I accept that the purposes of pleadings are to serve at least four purposes, that is firstly, to define the issues for decision; secondly, to give fair notice of the case to be met; thirdly, to set limits to the action so as to enable other procedures such as discovery to take place and evidence to be provided; fourthly, a purpose of pleadings is to provide a record of the ambit of the dispute.
11 In this case, at the outset of the present application I directed that the proposed amended statement of claim be filed as the statement of claim in the proceeding which has occurred. Further, with the consent of both parties I also directed, pursuant to paragraph 17 of Practice Note No. 1 of 2008 that the proceeding be conducted in accordance with the provisions of this Practice Note, even though the proceeding was commenced prior to the operation of the Practice Note even thought the proceeding was commenced prior to its operation.
12 One of the claims made by Downer is a substantial claim for variations. There are some 73 claims for payments for variations which are made, totalling approximately $33 million in terms of claims. It is common ground that the general conditions of the contract provide a facility to claim variations, indeed so much is provided pursuant to general condition clause 40.
13 However, general condition clause 40 also provides for a number of preconditions to be met. In order to sustain a claim for a variation one of the key preconditions is that Iluka, as the principal, was to give a direction to Downer to undertake the variation. Pursuant to the contract, as Mr Rudge, senior counsel for the plaintiff, has pointed out, the definition of a direction was widely drawn. It was defined to include any "agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement".
14 Paragraphs 5, 6 and 7 of the statement of claim plead the variations. Paragraph 5 of the statement of claim provides that it was a term of the contract CO555 that the works could be varied and the particulars provided to paragraph 5 are simply that:
GCC clause 40: the plaintiff refers to and repeats paragraph 4A(o) above.
During the course of the works, (a), the superintendent or, alternatively, his representative, directed variations to the works.
The particulars provided under paragraph 6 are that:
The particulars of the directions are contained in schedule A.
Downer carried out the variations to the works as directed.
The particulars provided to that allegation are provided as follows:
Particulars of the variations to the works carried out by Downer as directed are contained in schedule A.
Finally paragraph 7, of the statement of claim pleads that:
Iluka has failed to pay Downer on account of the variations to the works carried out by it pursuant to either the directions of the superintendent or his representatives.
15 Again, particulars of the amounts claimed are said to be included in schedule A.
16 Schedule A is a document which lists in tabular form the 73 claims for variations which are made. The claims are listed in descending order of value commencing with item 2.1 at $10,015,730 down to item 2.73 which is a claim for $1,806. The total of the variations amounts to $33,269,260.
17 Further particulars in respect of the matters in the table in schedule A are provided in schedule A under the heading, "Further particulars". Although the subject matter of each claim is detailed with sufficient clarity, in my view, to undertake discovery, and in my view provide adequate particulars to enable a clear understanding of the content of the claim in each case, nevertheless the particulars fail to adequately specify the necessary prerequisite for making a claim for a variation, that is, a direction emanating from Iluka in each case.
18 Schedule B of the statement of claim relates to provisional sum claims. In my view this suffers from the deficiency that, in some cases, the particular contractual basis relied upon in making out each provisional sum claim is not defined with sufficient clarity.
19 In relation to Schedule C, this relates to the extension of time claims made by the plaintiff. Again in my view Schedule C in a number of cases suffers from the deficiency that the precise contractual or legal basis of the claims for extension of time is not specified with sufficient clarity.
20 I find however that not only are the particulars in Schedules A, B and C sufficient to define the subject matter adequately for the purposes of discovery, they are also adequate to enable a defence to be drawn, at least in rudimentary form, at this point.
21 In this matter I am not only obliged to consider the requirements for particulars under rule 13.02, and of course the grounds for striking out or amending particulars pursuant to rule 23.02. I am also obliged to consider the new Practice Note No. 1 of 2008. In particular I make reference to paragraph 2(d) of the Practice Note which requires Judges:
To be more active and proactive in exercising their powers in order to seek to achieve a just resolution of building disputes in a speedy and efficient manner.
22 I also make reference to Paragraph 2(e) which requires Judges to be mindful of the need to not only apply the resources of the parties properly, but also to avoid the Court needlessly undertaking exercises which are not warranted by the proceeding and to take into account all of those matters in proportion to the matters in issue. Paragraph 2(f) requires lawyers to be expected to approach their cases cooperatively and with the object of not using the resources of the Court and of the parties needlessly or in a manner which is out of proportion to the matters in issue and finally, paragraph 2(g) requires lawyers to be focussed on the central issues in the case. In my view, the object of giving fair notice to the defendant of the case it has to meet can be achieved in a manner which is consistent with the requirements of Practice Note No. 1 of 2008.
23 The manner in which I propose to approach the case to achieve those twin objects is by making directions to the following effect:
5. The plaintiff then file and serve its witness statements.
24 I invite the parties, in accordance with these directions, to draft precise orders which reflect what I have said and I will invite the parties to do that and present them to the Court. I think what I have said ought to be tolerably clear.
25 In this way, the defendant will have fair notice of the case it has to meet and that is the intention of the ruling. The procedure will also have the following advantages in terms of efficiency and cost which are required to be considered pursuant to Practice Note No. 1 of 2008.
26 First, in my view it will produce a set of particulars which will accord with the evidence proposed to be adduced, thereby avoiding unnecessary further amendment of particulars.
27 Second, it will produce a document which will be of actual use in the trial in summarising the evidence proposed to be adduced by the plaintiff. This will be of assistance not only to the Court but also to the parties in opening the case and in final address.
28 Third, the procedure will avoid the considerable expense of the production of particulars which are likely to be of little or no use in the conduct of the trial if ordered at this point.
29 Fourth, the process will encourage the parties to focus on the main issues in the trial and finally, the procedure in my view will reduce the risk of needless but costly pleading disputes brought before the Court relating to the adequacy of any further particulars to be provided.
30 With these advantages in mind I propose to make the orders which I have outlined.
Downer EDI Mining Ltd
Iluka Resources Ltd [2008] VSC 622
The Court ordered (inter alia) that: the plaintiff file and serve witness statements; simultaneously file and serve amended summary particulars substituting Schedules A, B and C, with amended Schedule A identifying the facts proving each variation including particulars of the directions given by or on behalf of Iluka, Schedule B setting out the contractual basis for each provisional sum claim, and Schedule C specifying the contractual and legal basis (including central case law) for each extension of time claim; the defendant to file and serve its defence and any cross-claim by 5 September 2008 and the plaintiff to file and serve its reply by 26 September 2008; discovery and further directions as detailed in [23]. The order was to be drawn by the plaintiff's solicitors and signed by a judge (see [23]).