Blacktown City Council v Allen Jack + Cottier Architects Pty Ltd [2023] NSWSC 1305

Supreme Court New South Wales

Medium Neutral Citation: Blacktown City Council v Allen Jack + Cottier Architects Pty Ltd [2023] NSWSC 1305 Hearing dates: 27 October 2023 Decision date: 27 October 2023 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: First Cross-Defendant's Notice of Motion filed 12 September 2023 is dismissed with costs Catchwords: CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – whether exceptional circumstances warranting disclosure before evidence exchanged Texts Cited: Practice Note SC Eq 11 Category: Procedural rulings Parties: Blacktown City Council (Plaintiff/Respondent) Allen Jack + Cottier Architects Pty Limited (First Defendant/Cross-Claimant) Statewide Civil Pty Ltd (Second Defendant) ACOR Consultants Pty Ltd (Cross-Defendant/Applicant) Representation: Counsel: F Ashworth (Plaintiff/Respondent) N J Olson (Cross-Defendant/Applicant)

Solicitors: Maddocks Lawyers (Plaintiff/Respondent) Lander & Rogers (First Defendant/Cross-Claimant) Clyde & Co Australia (Cross-Defendant/Applicant) File Number(s): 2021/39903

EX TEMPORE JUDGMENT (REVISED) 1. In these proceedings the plaintiff, Blacktown City Council, sues the builder and the architect in relation to a tennis court constructed at Blacktown. The council alleges there are various defects in the tennis court for which the architect and the builder are responsible. The claim against the builder is currently stayed by reason of an arbitration agreement in the contract between the council and the builder. That arbitration is proceeding in the usual way. 2. The architect has cross-claimed against the first cross-defendant, ACOR Consultants Pty Ltd, who was the engineer engaged by the architect to produce design drawings for the tennis court. 3. The council has served all its evidence-in-chief, as has the architect. The claim against the builder is, as I say, stayed and directions have been made for the engineer to put his evidence on by February next year. Thus, the evidence is not complete. 4. In those circumstances and by Notice of Motion filed on 12 September 2023, the engineer seeks from the council disclosure of 38 categories of documents, all of which appear to relate to what are described as the "general notes" and the "concrete notes", and a design drawing prepared by the engineer in relation to the tennis courts. Each of the 38 categories seeks from the council all documents recording the construction of the "tennis centre" in accordance with the requirements in those paragraphs of the engineer's drawing. 5. There is no dispute that the engineer must show exceptional circumstances by reason of Practice Note SC Eq 11. 6. I am prepared to assume for today's purposes that the council may well hold the documents sought, although the council has not, in response to the enquiry from the engineer, said whether or not this is so, and that the documents are relevant to the claim made against the engineer by the architect. 7. The difficulty I see with the application is that the documents are said to be necessary to enable the engineer's expert to produce a report, the engineer being obliged to put all expert evidence on in accordance with the orders to which I have referred. 8. There are often cases in this list where a party seeking pre-evidence disclosure adduces evidence from a prospective expert who states that he or she needs the documents sought for an identified purpose and opines that it is likely that he or she might need to produce a second report were he or she obliged to produce a report in the first instance absent the documents sought. 9. There is no such evidence here. 10. The evidence that touches on the question of the stated likelihood that an expert would need the subject documents is contained in the following paragraphs from the affidavits sworn by Mr Jacques Jacobs, the solicitor for the engineer: "I am instructed that my client intends to seek orders for it to serve expert evidence in the proceedings including as to the allegations by [the council] that Statewide failed to construct the Tennis Courts in accordance with the amended tennis court drawings prepared by [the architect] and failing to construct the Tennis Courts using suitable new materials and proper tradesmanlike workmanship. I am instructed to seek the documents in the Schedule to the Motion prior to orders for my client to serve such expert evidence so that the parties' experts can consider documents relevant to the construction of the Tennis Courts." And: "If disclosure of the documents in the Schedule is not given now, ACOR will be required to prepare its expert evidence without regard to important documents relating to the construction of the Tennis Courts. ACOR intends to adduce expert evidence from a constructive expert. In the absence of the documents in the Schedule, it is difficult to see how a construction expert could form an opinion as to whether Statewide failed to construct the Tennis Courts in accordance with the Amended Tennis Court Drawings or failed to construct the tennis courts in a proper and tradesmanlike manner (as alleged by [the council] at [37] and [38] of [the council's] Contentions and adopted in [the architect's] and ACOR's responses to the claims made against them) and whether that caused the cracking, movement and defects alleged by [the council] at [30] of [the council's] Contentions." 1. It can be seen that this evidence is given at a very high level. It is also evidently given in circumstances where no expert has yet been retained. Thus, no expert has stated why he or she would need the documents nor whether he or she could form an opinion as to whether the builder failed to construct the tennis courts in accordance with the design drawings without the documents. 2. In my opinion, this application fails for this reason at the threshold, and it should be dismissed with costs.