Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd [2017] QCA 296

SUPREME COURT OF QUEENSLAND

CITATION: Wiggins Island Coal Export Terminal Pty Limited v Civil Mining & Construction Pty Ltd [2017] QCA 296

PARTIES: WIGGINS ISLAND COAL EXPORT TERMINAL PTY LIMITED ACN 131 210 038 (appellant) v CIVIL MINING & CONSTRUCTION PTY LTD ACN 102 557 175 (respondent)

FILE NO/S: Appeal No 10845 of 2017 / SC No 6050 of 2013

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane – [2017] QSC 218 (Flanagan J)

DELIVERED ON: 4 December 2017

DELIVERED AT: Brisbane

HEARING DATES: 22 – 23 November 2017

JUDGES: Fraser and Gotterson and McMurdo JJA

ORDERS: Allow the appeal.Set aside the order granting leave to the respondent to re-open its case.Set aside the order made on 6 October 2017 that the costs be reserved.Order the respondent to pay the costs of the application heard on 28 July and 21 August 2017 and the costs of the appeal.

CATCHWORDS: PROCEDURE – PROCEDURAL ASPECTS OF EVIDENCE – OTHER MATTERS – where a dispute arose in which the respondent claimed about $14.5 million and the appellant counterclaimed about $12.5 million – where the case was tried over 36 days and resulted in a judgment running to more than 300 pages (the May Reasons) – where one of the respondent’s claims was for costs associated with delays, caused by the appellant, in reaching practical completion under a contract (the Delay Claim) – where the respondent had sought a particular method of calculation of the Delay Claim but, in closing submissions, sought to advance a new method of calculation, but did not seek leave to re-open its case – where the appellant did not object to the new argument but submitted that if that new method was accepted, certain modifications should be made to the method – where the trial judge accepted the new method with the modifications urged by the appellants – where the final orders could not be pronounced without further submissions on how those modifications could be made – where the May reasons required further submissions on the recalculation of an exhibit in accordance with the appellant’s modifications – where the result of that recalculation was agreed between the parties but there followed extensive written and oral submissions from the respondent, urging a different method of calculation, in the course of which the respondent applied to re-open its case – where, in a reserved judgment, the respondent was given leave to re-open – where the appellant appealed the decision to give leave to re-open – whether the judge erred and a substantial injustice would result / Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited / Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85, related / Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 2) [2017] QSC 218, reversed / In re the Will of F B Gilbert (Dec’d) (1946) 46 SR (NSW) 318; [1946] NSWStRp 24, cited / Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; [2012] VSCA 232, considered

COUNSEL: D Kelly QC, with M G Lyons, for the appellant / D B O'Sullivan QC, with S J Webster, for the respondent

SOLICITORS: Corrs Chambers Westgarth for the appellant / Thomson Geer for the respondent

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.

GOTTERSON JA: I agree with the orders proposed by McMurdo JA and with the reasons given by his Honour.

McMURDO JA: The appellant, which I will call WICET, engaged the respondent, which I will call CMC, to undertake works as part of the construction of WICET’s coal export facility at the Port of Gladstone. A dispute arose in which CMC claimed amounts totalling about $14.5 million and WICET counterclaimed amounts totalling about $12.5 million.

The case was tried by Flanagan J over some 36 days. Subsequently, the parties presented further written submissions, the last of which were filed in December 2016. His Honour delivered detailed and timely reasons for judgment, running to more than 300 pages, in May 2017 (the “May Reasons”).¹ But no final orders were then pronounced, because his Honour required further submissions on a few issues. One of them was the quantification of what he described as the Delay Claim, which was a claim by CMC to be compensated for being delayed in its performance by causes for which WICET was responsible.

Unfortunately, the quantification of that claim became problematic, which in the May reasons, the judge had not anticipated. There followed extensive written and oral submissions on the question, occupying another two days of hearing, in the course of which CMC applied to re-open its case. In a reserved judgment given in October (the “October Reasons”), it was given leave to do so.² From that judgment comes this appeal.

WICET makes essentially two complaints. The first is that the final determination of this case will be delayed by not only further evidence from CMC, but in consequence, further evidence from WICET. The second is that this further evidence is required only because CMC now seeks to present a case for the quantification of the Delay Claim which was neither pleaded nor argued at the trial. Indeed the new case remained unpleaded. WICET seeks an order setting aside the permission for CMC to re-open its case and an order directing the trial judge to quantify the Delay Claim according to the methodology which he described in the May Reasons.

WICET’s argument faces several hurdles. First, it must establish an error in a discretionary decision. Further, appellate courts must exercise particular caution in reviewing discretionary decisions on matters of practice and procedure.³ In such cases, in addition to an error, the order appealed from must work a substantial injustice before an appellate court will interfere.⁴ The reason why caution is required in this context was explained by Jordan CJ in In re the Will of F B Gilbert (Dec’d) as follows:⁵

“…if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

And a further reason for caution, in the present case, is that the judge, having tried the case, and having written such extensive and detailed reasons for judgment, had an understanding of the case from which he should have been well placed to decide whether the interests of justice favoured CMC being allowed to re-open its case.

Notwithstanding those considerations, this Court should intervene if the judge erred and a substantial injustice would result from the case taking this new course. This Court has had the benefit of two days of extensive argument, which canvassed much of the evidence at the trial which is said to be relevant to the quantification of the Delay Claim. I have concluded that his Honour erred in permitting CMC to re-open its case. I would set aside the order permitting CMC to re-open its case. But I would not make the further order which is sought.

The Delay Claim

The agreed date for practical completion was 30 August 2012. By clause 35.5 of the Conditions of Contract, that date was to be extended if CMC was delayed in reaching practical completion by events and circumstances caused by WICET. By clause 36, where there was a delay which was so caused, WICET was to pay to CMC:

“… such extra Direct Costs as are necessarily incurred by [CMC] by reason of the delay and for on-Site overheads attributable to the delay valued by [WICET’s] Representative under Clause 40.5 ….”

The present controversy involves what was to be paid for on-Site overheads.

Clause 40.5 provided that where the contract provided that a valuation was to be made under that clause, the amount was to be ascertained by WICET’s representative by using certain rates or prices, as follows:

“(a) if the Contract prescribes specific rates or prices to be applied in determining the value, those rates or prices shall be used;

if Clause 40.5(a) does not apply, the rates or prices in a Priced Bill of Quantities or Schedule of Rates shall be used to the extent that it is reasonable to use them;

to the extent that neither Clause 40.5(a) or 40.5(b) apply, reasonable rates or prices shall be used in any valuation made by the Principal’s Representative.”

The judge found that WICET had caused CMC to be delayed in achieving practical completion. He concluded that CMC should be compensated for a period of delay amounting to 208 days, which was from the agreed date for practical completion until the date of practical completion. He held that its claim should be valued under clause 40.5, by using reasonable rates or prices, under clause 40.5(c).

That was not the way in which CMC had pleaded its case. In its (eighth) statement of claim, CMC pleaded that there were some 11 distinct causal events which had caused delay (each attributable to WICET), and which had resulted in 11 different periods of delay. Most of these delays were said to have occurred before the agreed date for practical completion. Under its pleaded case, CMC assumed a burden of proving that, for each of these events, there immediately followed a period of time for which it was delayed in carrying out the works. It was alleged that these periods of time, in aggregate, amounted to 243 days and 21.5 hours.⁶

Various amounts, according to which of the alternative rates under clause 40.5 were used, were claimed for those periods of delay. The amount claimed upon the basis of reasonable rates (clause 40.5(c)) was pleaded as follows:

“221. The Plaintiff's delay and disruption costs …are the value of its onsite overheads on site during the periods of delay, being:

…

… the sum of $4,474,484.00 as valued on the basis of reasonable rates or prices pursuant to clause 40.5(c) ….”.

There was an alternative claim pleaded in paragraph 221A (if reasonable rates or prices were to be used) in a sum of $3,700,104.

As CMC’s pleading acknowledged,⁷ it had to give credit for $4,087,233, which it had received from WICET on account of the Delay Claim. That was the total of amounts which WICET had been required to pay in consequence of an adjudication or adjudications under the Building and Construction Industry Payments Act 2004 (Qld) (“the BCIPA”).

The particulars of these claims were set out in an annexure to the pleading, which expressly adopted quantum reports by a firm called Aquenta, the author of which was a witness called in CMC’s case, Mr Roberts.

WICET pleaded that if CMC was entitled to any sum for delay, the amount should be quantified according to a report of its expert witness, Mr Tsipis.

Both Mr Roberts and Mr Tsipis based their assessments of the Delay Claim upon the contents of a document described as the “Overheads Spreadsheet”. That contained, amongst other things, details of resources employed by CMC which might have contributed to its on-Site overheads. The document identified each relevant employee and his or her job description and pay rate, for each day over any relevant period. Mr Roberts and Mr Tsipis disagreed about whether all of those resources ought to be included in an assessment for each delay period. Mr Roberts considered that all of them should be included; Mr Tsipis said that only some resources, which were those particularly affected by the event of delay under consideration, were relevant. That difference was reflected in the respective arguments of the parties at the trial. The trial judge preferred the evidence of Mr Roberts.

In its written submissions at the end of the trial, CMC advanced for the first time a different and alternative case, which was that its Delay Claim should be valued by reference to a single period, being the time in which CMC had been required to remain on site after the agreed date for practical completion. In what became its primary argument, CMC contended that every day on which it remained on site after 30 August 2012 was a delay due to something for which WICET was responsible. There had been no pleading of this case, and no evidence from Mr Roberts which had directly addressed the quantification of the Delay Claim on this basis.

In the oral argument at the end of the trial, counsel for CMC submitted that under this new variant of its case, the on-Site overheads could be quantified by reference to a document which was then tendered and became Exhibit 427. The document was compiled from the evidence of Mr Roberts. He had assessed the costs caused by the individual events of delay, some of which had post-dated 30 August 2012. Exhibit 427 was in a tabular form, and showed his valuations, using rates according to clause 40.5(b), for the periods of delay which were close to or after that date. An average daily rate for each “delay event” was shown in the table and, in turn, it showed the average of those averages, which was an amount of $24,587.09 per day. By applying that rate to the 208 days for which CMC was on site after 28 August 2012, the sum of $5,114,114.72 was claimed.

Importantly, at that point CMC did not seek to re-open its case. Instead, its counsel submitted that there was “sufficient expert evidence for your Honour to come to a view and a conclusion about what [daily] rate to apply [to this new case of 208 days]”.

WICET did not object to the tender of Exhibit 427 or to the advancement of this new and unpleaded case. Instead, it submitted that the calculation in Exhibit 427 had two flaws. The first was that it used rates according to clause 40.5(b) of the conditions of contract, whereas the claim should be allowed only upon the basis of “reasonable” rates according to clause 40.5(c). The second was a calculation of an “overall average rate” from a series of average daily rates for the various delay events. Instead, it was submitted, the aggregate of Mr Roberts’s assessments for the costs from individual delay events should be divided by the total number of days across those events (180), to derive an average daily rate. In this way, the overall daily rate would be more accurate, because it would be a “weighted” average. As I will discuss, each of those arguments was accepted by the trial judge in the May Reasons.

The May Reasons

The trial judge concluded that CMC was entitled, under clause 35.5, to an extension of the time for practical completion. He accepted that the appropriate period, for the valuation of the Delay Claim, was the 208 day period commencing on 30 August 2012. CMC was thereby entitled to an amount valued by reference to its on-Site overheads incurred during that period. He thereby accepted what had become CMC’s primary argument. The judge determined that there was no relevant “Schedule of Rates” for the purposes of clause 40.5(b), so that CMC’s claim should be valued by the application of reasonable rates pursuant to clause 40.5(c).⁸

He observed that “[i]n quantifying the on-Site overheads in respect of each Delay Event by the application of reasonable rates, there [was] little difference in the result arrived at by Mr Roberts and Mr Tsipis”.⁹ But he preferred to rely upon the evidence of Mr Roberts.

At that point in his reasoning, the judge encountered the difficulty from having not been assisted by submissions which suggested a quantification for on-Site overheads, if they were to be assessed using rates under clause 40.5(c). Exhibit 427 had used rates under clause 40.5(b). The judge considered that the evidence would enable that quantification to be made. But understandably, he sought the assistance of submissions to do so. It was that task which prevented him from quantifying the Delay Claim when publishing the May Reasons.

It is necessary to set out the critical paragraphs of the May Reasons:

“[835] The difficulty I have in ascertaining the amount for on-Site overheads is that neither of the quantum experts identified an appropriate daily rate reflecting CMC’s on-Site overheads for the relevant period of 208 days. As conceded by CMC, there is no direct expert assessment which may assist the Court. A number of the Delay Events which were valued by both Mr Roberts and Mr Tsipis, however, occurred near or after 30 August 2012. Mr Roberts’ report contains information permitting an assessment of CMC’s on- Site overheads post 30 August 2012. Exhibit 427 identifies the relevant Delay Events occurring near or after 30 August 2012, their duration and Mr Roberts’ valuation conducted by reference to Schedule C-4.2 rates. Exhibit 427 arrives at a daily average for on-Site overheads of $24,587.09. This daily average multiplied by 208 days delay comes to $5,114,114.72.

[836] There are two difficulties with Exhibit 427. The first is that it uses C-4.2 rates rather than reasonable rates pursuant to clause 40.5(c). Mr Roberts, as an alternative valuation, has used reasonable rates to all resources to arrive at a valuation of $4,474,484. Mr Tsipis has also applied reasonable rates but only to those resources he considered necessarily incurred additional costs by reason of the delays assessed by Mr King. Mr Tsipis’ valuation in this respect is $3,633,042. I have examined the Schedules to Mr Roberts’ report which evidence that he carried out the same exercise in relation to Delay Events occurring near or after 30 August 2012 using reasonable rates as well as C-4.2 rates. I will require further submissions and assistance in having Exhibit 427 re-calculated so as to reflect the use of Mr Roberts’ reasonable rates.

[837] The second difficulty with the calculations in Exhibit 427 was raised by WICET in oral submissions. The difficulty is that Exhibit 427 does not constitute a weighted average. The total duration of the relevant Delay Events referred to in Exhibit 427 is 180 days. The total of Mr Roberts’ C-4 valuation is approximately $3,683,287. By dividing that figure by 180 days the average daily rate is reduced from $24,587.09 to approximately $20,463. The adoption of a weighted average to arrive at an average daily rate is in my view correct. This weighted average should therefore be applied in calculating the average daily rate once the relevant valuation is calculated by reference to Mr Roberts’ reasonable rates rather than the C-4.2 rates.

[838] In seeking further assistance in this respect, I am not suggesting that there is not already evidence before the Court that would permit an assessment of the quantum of CMC’s Delay Claim.

[839] WICET counterclaims in relation to the Delay Claim (Variation 17). WICET has already paid CMC $4,087,233.21 in respect of Variation 17. WICET’s counterclaim cannot be determined until CMC’s Delay Claim is quantified.”

At the end of the May Reasons, under the heading “Disposition”, the judge wrote:

“5. As to the Delay Claim (Variation 17) CMC is entitled to an extension of time of 208 days. The parties are required to provide further submissions in having Exhibit 427 recalculated so as to reflect the use of Mr Roberts’ reasonable rates and incorporating a weighted average.”

It can be seen that the judge thereby accepted the two arguments which WICET had made about the use of Exhibit 427.

After the May Reasons

The task of the recalculation of Exhibit 427 did not prove difficult. The May Reasons had left no apparent scope for controversy. A recalculation was performed, which quantified the Delay Claim at $2,418,546.03.

If CMC’s Delay Claim was to be allowed in that amount, it had been overpaid because, as already noted, an adjudicator had required WICET to pay amounts totalling more than $4 million on account of the Delay Claim. CMC’s response was to then present written submissions that the Delay Claim should not be assessed as the judge had apparently held in the May Reasons. CMC presented yet another new case, by which its Delay Claim would be valued at $5,731,244.

CMC’s new argument was that a daily rate should not be based on CMC’s actual costs, but instead upon a broader assessment of what was “reasonable”. Therefore, it was argued, it was proper to include, within the resources said to be the contributors to its “on-Site Overheads”, resources which had been employed by CMC on the project, but away from the site. Explaining this change, CMC’s submission (dated 14 June 2017) was that “[w]hether a staff member was physically present on site on a particular day is immaterial to this approach; it is enough to show that the particular role [of that staff member] was required [for this project].”

There was also a change to the method of calculating a daily rate. Mr Roberts had arrived at what he said was a reasonable daily rate, for each working day of an employee, by taking a weekly rate, dividing it by 40 hours (to arrive at an hourly rate) and multiplying that by eight hours.¹⁰ He then applied that daily rate, for each of the distinct periods of delay which he had assessed, to the working days of that employee within that period. From that he was able to calculate the total costs of the relevant employees for the particular delay period. WICET argues that this latest case by CMC would apply Mr Roberts’s daily rates to each and every of the 208 days, regardless of whether it was a working day. In that way, it is said, the claim has been inflated by about 40 per cent.

After the parties presented written submissions in which CMC raised this new case, the judge convened a further hearing, for two hours on 28 July 2017. At the commencement of that hearing, his Honour said:

“Can I make something clear to you. I had no idea that the recalculation of exhibit 427 with a weighted average would result in what I see as not an appropriate daily rate for the extension of time.

…

It was completely unforeseen on my part.”

He continued:

“[T]he role of the court is – you’re really standing in the role of the personal representative and you’re trying to arrive at what is an appropriate on-site daily rate for the application to the extension of time.

…

So if I arrive at a point where I think $11,000 as an on-site daily rate, given the admission in the defence and given the whole of the evidence, is not appropriate, I can’t make it.

…

But the real difficulty I have is that this all happened very late in the trial, and I know that you [counsel for CMC] sought to reserve the position after I had given my factual findings to make submissions on quantum at that stage, which was resisted by [counsel for WICET] and I thought it best to move to decide all issues as far as I could in the judgment. But it has come to this rather odd point where, whilst it’s irrelevant, but we’re so far off the original arbitrated amount.”

Some things to which the judge then referred need to be explained. The amount of $11,000 referred to the daily rate to be applied to 208 days, from the recalculation which his Honour had directed in the May Reasons.

The “admission in the defence” was a reference to paragraph 242 of WICET’s pleading, which had admitted that, if CMC was entitled to anything on its Delay Claim (which was denied), the amount which should be allowed was $3,258,887. However that was upon the premise that CMC was awarded distinct amounts for separate events having caused separate periods of delay, which was the structure of CMC’s pleaded case. In the May Reasons, the judge had found that only some of those events had caused a delay for which WICET was responsible. And, of course, the judge had rejected CMC’s pleaded case and instead held that CMC should be awarded an amount for a period of 208 days from the agreed Date for Practical Completion. Therefore, WICET’s admission of what could be allowed on the pleaded case provided no indication of what should be allowed for the (different) case which was accepted by the judge in the May Reasons.

In the above remarks, the judge referred to “the original arbitrated amount”. There had been no arbitration, but rather an adjudication under the BCIPA. The adjudicated amount or amounts, of course, were provisional sums and were irrelevant to the assessment of what should be allowed in a final judgment.¹¹ Moreover, they had been assessed using rates under clause 40.5(b), not reasonable rates under clause 40.5(c).

In this hearing on 28 July, the judge observed that he had been told at the trial that he could use the evidence of Mr Roberts for arriving at an appropriate daily rate, should he hold that the 208 days was the relevant period. He pointed out to CMC’s counsel that the case for which he was now contending was different from that which he had presented at the trial. There was this exchange:

“COUNSEL: That’s true. But we would submit that we’re not tied to the way we presented the case in closing submissions, either by our pleading or our particulars. The pleading and particulars claimed reasonable rates. They didn’t specify a method, a variety of reasonable rates, for the on-site overheads. So we’re not tied by our pleading or particulars to any particular methodology. The court having rejected both experts’ valuation of reasonable rates because of the wrong contractual interpretation, we say it’s now open to us to invite the court to assess what is the proper valuation on the whole of the evidence.

HIS HONOUR: But I was informed by way of final submission I could undertake that exercise by reference to Mr Roberts’ reasonable rates on the basis that both experts had agreed that the appropriate resources were identified in the CMC document.”

The argument continued on 21 August 2017, when the judge commenced by saying that he felt unable to “undertake the task that CMC is asking me to undertake” because of the disagreement between the parties. He said that this task would ordinarily be undertaken by an expert witness. At that point, counsel for WICET reminded his Honour of his submission that CMC was not entitled to make this new case.

Counsel for CMC explained to the judge that the assessment which he was now being asked to make was different from that which the May Reasons had described. It was not, counsel said, an assessment of a reasonable daily rate from the costs actually incurred by CMC during this period, but instead was a broader and less complex assessment of what, in the judge’s view (however informed), would be a reasonable amount. Nevertheless, the judge continued to say that he believed that he required an expert to assist him in that task, at one point asking CMC’s counsel:

“[W]hy can’t I have the benefit of an expert to assist me on that?”

WICET’s counsel protested that to meet this new case, he would first need to see a proposed amended pleading. CMC’s counsel then asked for a short time in which to take instructions as to whether he would apply to re-open CMC’s case. Shortly afterwards, he made that application. CMC, he said, was applying “to re-open to call expert evidence on the assessment of the appropriate reasonable rate covering the 208 days”. He said that additional expert evidence might be required from each side, but submitted that all of the expert evidence would be confined to the “factual evidence already tendered”.

WICET’s counsel submitted that any application to re-open should be made formally and supported by evidence. CMC’s counsel responded that such a course would be a “waste of time” and that the judge could deal with the application as it had been made orally. The judge then reserved his decision on the application.

The October Reasons

In this judgment, his Honour began with a summary of the procedural history of the Delay Claim. He noted that in CMC’s written closing submissions at the trial, CMC had identified, for the first time, that upon the proper interpretation of the contract, what was relevant was its delay in achieving practical completion, or in other words, the period of 208 days. The judge noted that no objection had been made to that argument, which had not been pleaded, being raised only at that stage in the trial.¹²

The judge said that “[t]he difficulty in determining the quantum of the Delay Claim [on this basis which the judge had accepted] is that neither quantification expert has carried out this task”.¹³

After referring to the arguments, the judge said that:¹⁴

“The real issue in dispute between the parties is whether CMC should continue to be bound by the resources identified in the Overheads Spreadsheet.”

He observed that the Overheads Spreadsheet had been “indirectly incorporated into CMC’s pleading”, but said that that was not “the end of the matter”.¹⁵

The judge continued:¹⁶

“CMC has already, without objection, departed from its pleaded case as to how the relevant delay is identified. Having been permitted to depart from its pleaded case in this respect there is no difficulty, in my view, with permitting CMC to re-open its case for the purposes of quantifying the Delay Claim based on the Court's construction of clause 36. Neither CMC's pleading nor how it conducted its case limits CMC in now establishing, by expert evidence, an appropriate average daily rate for on-Site overheads for the extension of time of 208 days. This is the task that clause 40.5(c) of the General Conditions of the Contract requires.”

The judge referred to a submission by WICET that the sentence in [835] of the May Reasons, which reads “Mr Roberts’ report contains information permitting an assessment of CMC’s on-Site overheads post 30 August 2012”, constituted a finding of fact. He rejected that submission, saying:¹⁷

“The sentence should however be viewed as recording CMC’s oral submission made on the second last day of the trial.”

The judge was correct in saying that this was CMC’s oral submission at the end of the trial. However, as I read [835] of the May Reasons, the judge accepted it. Moreover, nothing was said in the October reasons to the effect that Mr Roberts’s report did not contain sufficient information for the purpose.

The judge said that he accepted, “at least on a preliminary basis”, that the Overheads Spreadsheet did not include all of CMC’s resources which had been detained on-Site during the 208 days.¹⁸ Apparently for that reason, he said that the task of identifying an appropriate daily average rate should be carried out by an expert and was not an appropriate one for the Court.¹⁹ He said that any potential prejudice to WICET could be overcome by allowing it to call expert evidence, in response to the evidence to be called by CMC. The experts would be limited to the primary evidence tendered or given at the trial.²⁰ His Honour concluded with this statement:²¹

“In the present case the question of whether CMC should be permitted to re-open involves an exercise of discretion. The re-opening is sought on the basis that the Court, in giving Reasons, has construed clause 36 of the General Conditions of the Contract in a way that has not been addressed by either quantity expert. It was not until the Court resolved the competing submissions as to the proper construction of clause 36 that the relevant inquiry for the calculation of on-Site overheads crystallised. Neither Mr Roberts or Mr Tsipis have yet analysed CMC's overhead resources which were detained on-Site for the additional 208 days from 30 August 2012 to 26 March 2013. The re-opening sought is not in respect of liability but only in relation to the calculation of the quantum of the Delay Claim. In those circumstances it is appropriate that CMC be given leave to re-open its case for the limited purpose of calling expert evidence to quantify the Delay Claim based on evidence that has already been tendered or given at trial.”

The order which was made was that CMC have leave to re-open its case “to call expert evidence in respect of the quantification of the Delay Claim.”

Consideration

No order was made in this case for the determination of any issue ahead of other issues. The trial proceeded in the usual way, with the parties expected to adduce all of the evidence upon which they might wish to rely, before they made final submissions and the judgment was reserved.

CMC presented its Delay Claim in the alternative. Its primary argument became that it was to be compensated for being delayed in reaching practical completion later than the parties had agreed. For that argument, CMC had to prove the facts by which its entitlement under clause 36 could be quantified. In its submissions at the end of the trial, CMC assured the judge that this could be done from the evidence which had been adduced.

In the May Reasons, the judge referred to no evidentiary gap in CMC’s case. He required only the assistance of the parties in an exercise of mathematical calculation, upon the basis of the evidence already before the court.

The issues which the parties had required the judge to determine are evident from the May Reasons at [803] to [839]. The judge accepted CMC’s case that the cost of the entirety of its on-Site overheads, over the period of 208 days, was recoverable. Most importantly, there was no issue as to what were in fact the resources which contributed to CMC’s on-Site overheads during this period.

The resources which constituted the on-Site overheads were evidenced by the Overheads Spreadsheet. This document was initially prepared by CMC and, after some changes had been made by another consultant, it was briefed to Mr Roberts, who made some adjustments after reviewing it. The document, as adjusted by Mr Roberts, was accepted by Mr Tsipis. There was no controversy about its content and that it incorporated all of the relevant contributors to CMC’s on-Site overheads. Moreover, as the judge held in the October Reasons, the document had been effectively incorporated into CMC’s pleading.

CMC’s case, as presented to the judge after the May Reasons, departs from the common ground of the Overheads Spreadsheet. As the judge said in his October Reasons,²² there was a question of “whether CMC should continue to be bound by the resources identified in the Overheads Spreadsheet.”

In its written submissions dated 5 July 2017, WICET did agree that there were some omissions from the Spreadsheet. It conceded that there were particular instances where contemporaneous documents (ie. timesheets, daily costing sheets or meeting minutes) recorded a person working on-site on a particular day, but where that resource has not been included in the Spreadsheet.²³ These were simply adjustments to correct clerical errors in the Spreadsheet. By conceding them, WICET did not agree to a different meaning to be given to the expression “on-Site overheads”, than that from which the Spreadsheet had been prepared.

It is the adoption of a different concept of on-Site overheads that would require further evidence. No witness at the trial explained why, for example, the cost of employing someone who was working off-site should be relevant. And if this new case were permitted, it would be likely to require new evidence going beyond opinion evidence. As WICET submits (as it did to his Honour), it would be necessary to explore the facts and circumstances of resources which were employed off-site, such as what was done by an employee on any day when he or she was working elsewhere. In my view, the judge erred in thinking that the further evidence could be confined to expert evidence.

The judge recognised that this was a departure from CMC’s pleaded case. But he reasoned that because WICET had agreed to CMC departing from its pleaded case, when it argued at the end of the trial to be compensated for this period of 208 days, WICET could not now complain of another departure from the pleading.²⁴ In my view, that was an error. It is true that WICET did not object to that first departure from CMC’s pleaded case. But by doing so, it did not agree that, thereafter, CMC could raise any new case, whatever its content and at any stage, even after the judge had published his reasons for judgment. The case which WICET agreed to meet at the end of the trial was an argument about the proper interpretation of the contract. As CMC then assured the judge, it involved no further evidence. This new case requires further evidence, which is why CMC, having been allowed by the judge to re-open, now strongly resists this appeal.

Further, in my respectful view, the judge erred in not recognising the importance of the stage which the litigation had reached. This was not an application to re-open made during the trial. The trial had concluded and the judge had given extensive reasons for judgment, in which he had made findings which were not provisional, but conclusive. He had determined the issues which, during the trial, the parties had presented for his determination. He had done so upon the premise of facts which were not in issue. Those facts included what were the resources which constituted CMC’s on-Site overheads for the purposes of the Delay Claim.

The long established and proper course of a trial by a judge of a civil claim is not a mere ritual. It is a process which serves many purposes, including the provision of procedural fairness, the efficient use of the resources of the court as well as those of the parties, and the achievement of certainty and finality. I respectfully adopt what was said by the Victorian Court of Appeal (Harper and Tate JJA and Beach AJA) in Spotlight Pty Ltd v NCON Australia Ltd as follows:²⁵

“There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.”

(Footnote omitted)

Those comments were made in a case where, after the trial of a claim for damages for breach of contract had concluded and judgment was reserved, the trial judge sent a memorandum to the parties in which he set out certain possible findings and asked whether the plaintiff wished to apply to re-open its case on damages in anticipation of those findings being made. The plaintiff applied to re-open and over the defendant’s opposition, was allowed to do so. That order was set aside on appeal. The events in that case are in many ways similar to those of this case, except in two respects which ought to have made this application to re-open even less meritorious. The first is that the re-opening in Spotlight was prompted by a perception by the trial judge of an evidentiary gap in the plaintiff’s case. In the present case, on the findings in the May Reasons, the award for the Delay Claim was able to be assessed from the existing evidence. The second is that in this case, the application was made after the publication of the judge’s findings and conclusions, which were not simply indications of a possible outcome.

CMC has now asked the judge to depart from the reasoning by which he had resolved what seemed to have been all of the arguments relevant to this claim. CMC did so without being able to suggest that the judge had made some mistake in the May Reasons, or that he had expressed findings and conclusions which could not have come from the respective arguments at the trial.

In Spotlight, the Court went on to say that a further difficulty with the re-opening of that plaintiff’s case was the uncertainty about what evidence would then be adduced.²⁶ That would also be a problem in the present matter, if CMC is permitted to re-open its case. CMC would be confined to further expert evidence. But the content of that evidence is unknown, as is the identity of the relevant witness or witnesses. It is not unlikely that CMC would call evidence which is inconsistent with that which was given by Mr Roberts at the trial. Thus having accepted the evidence of Mr Roberts in the May Reasons, his Honour might be asked to prefer the new evidence. Further, as I have noted, there is the likelihood that evidence from lay witnesses would be necessary.

The lateness of this step by CMC could not be satisfactorily explained. Instead, the evident explanation is that the amount which would be allowed for the Delay Claim, on the case which it advanced at the trial, is simply not to its liking. The course of this litigation, if the order stands, would be uncertain in its scope, but inevitably productive of substantial delay and costs.

For these reasons, in my respectful opinion, the exercise of the judge’s discretion miscarried. In all the circumstances, the justice of the case did not favour the grant of leave to re-open.

The order made in the October Reasons should be set aside. But WICET seeks a further order which is expressed in the notice of appeal as follows:

“The proceedings … be remitted to the Honourable trial judge to deliver reasons on the quantification of the respondent’s delay claim in accordance with [1069.5] of his Honour’s reasons delivered on 19 May 2017 by quantifying the delay claim using Exhibit 427 as recalculated by the parties to reflect the use of the respondent’s quantum expert’s reasonable rates and incorporating a weighted average.”

I am not persuaded that such an order should be made. It would provide that a certain amount be recalculated by “the parties”, which assumes a concurrence between them which is now unlikely. It is true that after the May Reasons, there was a recalculation undertaken by CMC with which WICET agreed. However, as I have noted at [53], there were some clerical errors in the Overheads Spreadsheet. There may or may not be consensus as to the way in which, if at all, they affect the use of Mr Roberts’s rates. Should there be an issue of that kind, it would be a matter for argument and not evidence. And it should be resolved by the judge consistently with his Honour’s findings and conclusions in the May Reasons, including what I see as his acceptance at [835] that “Mr Roberts’s report contains information permitting an assessment of CMC’s on-Site overheads post 30 August 2012.”

Orders

I would order as follows:Allow the appeal.Set aside the order granting leave to the respondent to re-open its case.Set aside the order made on 6 October 2017 that the costs be reserved.Order the respondent to pay the costs of the application heard on 28 July and 21 August 2017 and the costs of the appeal.

Footnotes

1. Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85. ↩

2. Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd (No 2) [2017] QSC 218. ↩

3. Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. ↩

4. Just GI Pty Ltd & Anor v Pig Improvement Company Australia Pty Ltd [2001] QCA 48 at [14]; MGM Containers Pty Ltd v Wockner [2006] QCA 502 at [29]. ↩

5. (1946) 46 SR (NSW) 318 at 323, cited with approval by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (Supra). ↩

6. Eighth Further Amended Statement of Claim, paragraph 193. ↩

7. Paragraph 222. ↩

8. May Reasons [830], [831]. ↩

9. May Reasons [831]. ↩

10. With further percentages added which need not be discussed. ↩

11. BCIPA s 100. ↩

12. October Reasons at [13], [14]. ↩