FEDERAL COURT OF AUSTRALIA ShoreForm (Qld) Pty Ltd v Millennium Coal Pty Ltd (No 3) [2014] FCA 684 Citation: ShoreForm (Qld) Pty Ltd v Millennium Coal Pty Ltd (No 3) [2014] FCA 684 Parties: SHOREFORM (QLD) PTY LTD ACN 115 107 250 v MILLENNIUM COAL PTY LTD ACN 089 566 021 and PEABODY AUSTRALIA MINING PTY LTD ACN 002 818 699 File number: NSD 2347 of 2011 Judge: ROBERTSON J Date of judgment: 25 June 2014 Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Date of hearing: 25 June 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr F Corsaro SC with Mr D Mahendra Solicitor for the Applicant: Fraser Clancy Lawyers Counsel for the Respondents: Mr NJ Kidd SC Solicitor for the Respondents: McCullough Robertson Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2347 of 2011 BETWEEN: SHOREFORM (QLD) PTY LTD ACN 115 107 250 Applicant AND: MILLENNIUM COAL PTY LTD ACN 089 566 021 First Respondent PEABODY AUSTRALIA MINING PTY LTD ACN 002 818 699 Second Respondent JUDGE: ROBERTSON J DATE OF ORDER: 25 JUNE 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant be granted leave to read paragraphs 1 to 3, 5 to 7, 9 to 10, 12.1 to 12.3, 14.1 to 14.3, 17, 19, and 20.6 to 20.7 of the affidavit of Mr Anthony Saba sworn on 18 June 2014. 2. Leave to read the affidavit of Mr Anthony Saba sworn on 18 June 2014 otherwise be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2347 of 2011 BETWEEN: SHOREFORM (QLD) PTY LTD ACN 115 107 250 Applicant AND: MILLENNIUM COAL PTY LTD ACN 089 566 021 First Respondent PEABODY AUSTRALIA MINING PTY LTD ACN 002 818 699 Second Respondent JUDGE: ROBERTSON J DATE: 25 JUNE 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks to read an affidavit sworn on 18 June 2014 by Mr Anthony Saba, the managing director of the applicant. The body and the substantive content of the affidavit are approximately 77 pages. Apart from a discrete topic referred to by the parties as the deed issue, the evidence was otherwise closed and the matter was listed for closing submissions over three days, beginning yesterday, 24 June 2014. The original dates of hearing were 31 March through to 4 April 2014. The matter was not then concluded and was adjourned to 19 May 2014 and was heard over the dates 19 May to 21 May. Again, the matter was not concluded and was adjourned, for the purpose I have indicated, to 24 to 26 June 2014. 2 On 21 May 2014, I gave directions as to the filing of written submissions and extensive written submissions were filed by each side dated 12 June 2014 for the applicant and 19 June 2014 for the respondents. It is relevant that the hearing of the matter has taken the number of days that I have indicated, not all of them consecutive, and to note that much of the detail of the quantification of the applicant's claim is complex. Indeed, I indicated on the previous occasion, on 21 May, that the parties should identify questions of principle in relation to the quantification of the claim. However, nothing I then said meant that there should be further evidence on quantum, let alone evidence of the type contained in the affidavit under consideration. 3 The flavour of the affidavit sought to be read is given by the terms of paragraph 6: 6. I have been asked to comment and adjust where necessary the amounts claimed by [ShoreForm] in these proceedings by reference to the facts and information included in my 24 October 2013 letter and my 28 March 2014 Affidavit (resworn 3 April 2014) as well as by reference to the relevant documents discovered in these proceedings to: 6.1 Provide a summary issues raised during the evidence relating to the [ShoreForm] claims; and 6.2 Clarify any points of issue or difference that may have become apparent from the oral evidence that has been given by the various Witnesses; and 6.3 Clarify areas in the APK Expert Report dated 13/12/2013, prepared for [ShoreForm] by Altus Page Kirkland Cost Management, which I do not accept or agree with; and 6.4 Provide evidence as to why I believe [ShoreForm] are entitled to paid the amount of [ShoreForm] claims; and 6.5 Amend the references to the GRC Expert Report which has been withdrawn and to reference the item numbers in my Progress Claims as referred to in APK's opinion. I also refer to specific examples to which my attention was drawn in paragraphs 18.3 and 23.5, where the deponent for the applicant would apparently express disagreement with the report of the expert called on the applicant's side of the record and which was served at the end of 2013: 18.3 I do not agree with or accept the APK Opinion 3 assessment, I maintain [ShoreForm] is entitled to be paid the more than the APK assessment. … 23.5 I do not agree with or accept the APK Opinion 3 assessment, I maintain that [ShoreForm] is entitled to be paid $9,360 in addition to the APK assessment in respect of APK Items 14.11 to 14.14 … below. 4 It was accepted that part of the contents of the affidavit is submission, but I would not so admit it because I would then have the task of reading two sets of lengthy written submissions on behalf of the applicant and endeavouring to work out the relationship between them. In my view, anything that is submission in the affidavit should be included in the applicant's written submissions. 5 There is also the problem of form in that what is submission and what is evidence is interwoven and not distinguished or distinguishable without a close reading of the lengthy material. 6 A further and most important consideration is that senior counsel for the respondents submits he is not in a position to deal with the material in the remaining time allocated for the hearing. He has also indicated that except in so far as the affidavit included a reduction of the quantum of the claim, he would wish further to cross-examine Mr Saba on the new evidence in the affidavit. Senior counsel for the respondents has taken me, with some particularity, to the contents of the affidavit in support of this submission and I accept the submission. 7 I think there is a further point to be made which is that at the end of a long case a party should not be required to divert its attention to newly filed, complex and lengthy evidence and thus be diverted from the task of preparing the necessary detailed submissions. I accept the description of the affidavit material given by senior counsel for the respondents that it is dense, detailed, lengthy and sometimes complicated evidence on quantum. In this case detailed written submissions were filed, particularly by the respondents, with much reference to evidence. The point is that what was, in accordance with the directions of the Court, a fixed evidentiary basis, apart from the deed issue, would be disturbed in a substantial way by the admission of the affidavit. 8 Trials must proceed sequentially and, in my opinion, much of the content of the affidavit is evidence-in-chief. Detailed directions were made, as is usual and necessary, for the filing and serving of affidavit evidence and much of the affidavit evidence was filed and served as long ago as 2013. 9 I would also observe that the course of evidence in a trial, particularly where, as here, there has been extensive cross-examination, gives shape to the trial and to the evidence in the trial which should not readily permit the late filing of contentious and extensive affidavit material. 10 In making these observations I do, of course, bear in mind the terms of s 37M of the Federal Court of Australia Act 1976 (Cth), and the tenor of and observations in the judgments of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 11 I have taken into account that each side engaged an expert, and that there was a conclave and then a joint report, and that ultimately the respondents did not read the respondents' expert's report, and the joint report is no longer to be relied on by either side. However, this does not affect my analysis. I was not taken in any detail to any particular issues that might arise from the events that I have just described. 12 For these reasons, which include the prejudice to the conclusion of this lengthy trial, I refuse leave to the applicant to read the affidavit of Mr Saba sworn on 18 June 2014, except for the paragraphs to which the respondents have not taken objection, that is, paragraphs 1 to 3, 5 to 7, 9 to 10, 12.1 to 12.3, 14.1 to 14.3, 17, 19, and 20.6 to 20.7. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 30 June 2014