Supreme Court New South Wales Medium Neutral Citation: Thiess v Parsons Brinckerhoff Australia [2015] NSWSC 326 Hearing dates: 25 March 2015 Decision date: 25 March 2015 Jurisdiction: Equity Division Before: McDougall J Decision: Dismiss with costs application for disclosure before evidence. Catchwords: PROCEDURE - interlocutory issues - application for disclosure before evidence - Practice Note guiding the exercise of discretion - relationship between Practice Note and Rules - where practice note requires exceptional circumstances necessitating disclosure - where the facts in issue were not identified before hearing - where the categories of documents sought cover vastly more material than is capable of bearing on those facts in issue - where applicant conceded that many documents were merely on 'wish list' - delay in bringing application Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bauen Constructions Pty Limited v New South Wales Land and Housing Corporation [2014] NSWSC 684 Category: Procedural and other rulings Parties: Thiess Pty Limited (First Plaintiff) John Holland Pty Limited (Second Plaintiff) Parsons Brinckerhoff Australia Pty Limited (First Defendant) ACN 006 475 056 Pty Limited (Second Defendant) ACN 061 447 621 Pty Limited (Third Defendant) URS Australia Pty Limited (Fourth Defendant) Representation: Counsel: R J Cheney SC (First and Second Defendants) L W F Chan (Third Defendant) B C A Bradley (Fourth Defendant) Solicitors: K&L Gates (First and Second Defendants) Colin Biggers & Paisley (Third and Fourth Defendants) File Number(s): 2010/355406 Judgment – ON application for disclosure 1. HIS HONOUR: This is an application for disclosure before evidence pursuant to Practice Note SC Eq 11. 2. The dispute the subject of these proceedings relates to the construction of the Lane Cove tunnel; specifically, to a collapse that occurred at the intersection of two tunnels forming part of that complex at a place known colloquially as the Marden Road exit. 3. The plaintiffs were a consortium who had the obligation to design and construct the tunnel. The first two defendants were the designers. It is convenient to refer to them collectively as "PB". 4. The third defendant (PSM) was responsible for geological and geotechnical investigations and for monitoring ground conditions during the construction phase. 5. The fourth defendant (URS) was an independent verifier whose responsibility was to verify that the design produced by PB complied with relevant requirements of the Project Deed. 6. As the Practice Note makes clear, the Court will not make an order for disclosure prior to service of evidence "unless there are exceptional circumstances necessitating disclosure". The Practice Note makes it clear, further, that any disclosure ordered must be "necessary for the resolution of the real issues in dispute in the proceeding". 7. Unfortunately, as it seems to me, PSM has failed to pay appropriate regard to the requirements of the Practice Note. 8. I accept of course that a Practice Note cannot limit or circumscribe a general discretion given by the Uniform Civil Procedure Rules 2005 (NSW). Nonetheless, in the ordinary case at least, it may be expected that a Practice Note will provide a guide to the exercise of the discretion in circumstances covered by the Practice Note. In this case, there can be no doubt that the Practice Note is engaged, because PSM has not served its evidence, and says that it wishes to obtain the documents of which disclosure is sought for the purpose of completing its evidence. 9. Further, as Ball J pointed out in Bauen Constructions Pty Ltd v New South Wales Land and Housing Corporation [2014] NSWSC 684 at [19], the purpose of the Practice Note is to list conditions that, in the ordinary case at least, must be satisfied before the Court will order disclosure. It is not the function of the Practice Note to list conditions which are sufficient to obtain an order for disclosure. The general discretion to order (or not order), or order (but limit), discovery under the UCPR still exists. That general discretion is of course controlled by the overriding purpose set out in s 56 of the Civil Procedure Act 2005 (NSW). 10. At a level of some generality, if an order for disclosure before evidence is to be made, it would be necessary for the applicant to do at least two things. The first would be to show the fact or facts in issue (or, in the words of the Practice Note, "the real issues in dispute") to which the disclosure is said to be relevant. The second would be to show that, without disclosure, the applicant would be significantly inhibited in putting on its evidence. 11. In the present case, the notice of motion which, ultimately, was filed sought disclosure in some five categories from PB, and in some three categories from URS. 12. As to PB, the first category contained some eight subcategories. Ms Chan of counsel, who appeared for PSM on the application, conceded that categories 2, 3 and 4 were "wish list" categories. The fifth category (which relates to files relevant to the modelling of PB's expert Dr Mark Diederichs), is to be provided by consent. 13. The first and obvious point is that the Practice Note does not exist to facilitate, let alone to authorise, disclosure of "wish list" documents. 14. As to the first category (or eight subcategories), Ms Chan identified the facts in issue as being: 1. What were the ground conditions for which the tunnel support design was prepared? and 2. What tunnel span width was the design prepared for? 1. In relation to the second suggested fact in issue, it seems that PSM or its expert, Dr Brian Burman, wishes to know whether the span width was 9 metres, appropriate to a two-lane highway, or what is said to be the actual width, namely, 14 metres. 2. It may be said at once that the first category of documents would capture vastly more material than that possibly capable of bearing on the two facts in issue that have been described. Thus, at that level alone, the request for disclosure cannot be supported. 3. The next point to make is that Dr Diederichs has furnished a lengthy report which identifies, in Appendix C1, "documents comprising the final design". In this context, the expression "final design" may be taken to mean the design as at 5 November 2005, when the tunnel collapse, which has given rise to this litigation, occurred. 4. Appendix C1 identifies some 25 discrete documents (although the last four of those are documents issued by PSM, and may in fact comprise bundles of documents), and a number of identified PB drawings. Those drawings are described specifically by drawing and revision number and date of issue. 5. Mr Cheney SC, who appeared for PB on the hearing of the application for disclosure, confirmed that it was his client's case that those documents comprised the totality of its design documents at the date of collapse of the tunnel. 6. Ms Chan submitted that Dr Burman had said that it was not apparent from those documents that the design had taken account of the actual ground conditions, or of the appropriate span width. She said, further, that experts who had furnished reports on which the plaintiffs rely had said specifically that in those circumstances, they would assume that the PB design was not based on the actual ground conditions, and did not take account of the actual span width. 7. There is no evidence as to why Dr Burman wishes (or indeed needs) to take any different approach, in circumstances where it is plain, and must have been plain at least from 13 February 2015 when Dr Diederichs' report was served, that the case for PB as to its design was I have described it. 8. There is another difficulty with the application, as Mr Cheney pointed out. Although a letter dated 19 March 2015 from the solicitors for PSM to the solicitors for PB asserted that the first 10 bullet points of the categories of discovery (as it was then called, and as it then stood) had been settled by Dr Burman, the only evidence of any need for the documents comes from the affidavit of Mr Lurie, a solicitor employed by the firm conducting the litigation on behalf of PSM, in which Mr Lurie gives evidence on information and belief as to what Dr Burman had told him. All that appears from that conversation is that Dr Burman appears to think that PB did not do any design for the relevant intersection, because there were no documents indicating any specific design for it. 9. There is nothing in that conversation (apart from some irrelevant observations relating to the wish list) that demonstrates any need for the documents in question, even tied, (as they now are) to the two factors in issue that I have identified. 10. For those reasons alone, the application must fail. 11. There are other reasons why the application should not succeed. The only one that I wish to mention is the delay in bringing it. It is correct to say, as Ms Chan submitted, that some documents had been requested as long ago as 9 October 2014. However, when that request was made, it was far more limited than the request now made. And, indeed, it was responded to within a week, in circumstances where there was no quibble and the response was said to be only by way of cooperation. The response forwarded one of the documents requested and indicated where the other ones could be found. It has not been suggested that the response was in any way misleading. Rather, it was said in later correspondence, "it contains insufficient information for the purposes of [Dr Burman's] report in reply". 12. It was at that point that the parties began to correspond in relation to proposed categories of discovery. However, that correspondence appears to have come to an end on about 18 December 2014, with no resolution being reached. 13. Thereafter, it was not until 10 March 2015 that the agitation for production of documents was renewed. It was that agitation, and the response to it, which led to the filing of the notice of motion with which I am now dealing. 14. In those circumstances, bearing in mind the "evidence" as to the difficulty and expense of producing the documents now sought, and the delays that would follow, I regard the delay in prosecuting the application (particularly bearing in mind the Court's observations on 12 December 2014) as being an alternative answer to the claim. 15. I should say that I referred to "evidence" for a specific reason. When the matter came before me last Friday, I indicated that because it was necessary to bring the application on and decide it quickly, I would be prepared to accede to the parties putting on the usual evidence as to expense and delay by way of written submissions, on the basis that it could be verified on information and belief if necessary. PB availed itself of that procedure. There was no suggestion that I should not have regard to what was revealed in that fashion as being in effect the equivalent of evidence. Nor was there any submission that I should require PB's solicitor to verify the assertion, as having been conveyed to her or him by the client. 16. As I have said, the application against PB must fail. 17. I turn to the documents sought from URS. The second category falls into the "wish list" category and I do not need to repeat what I have said about the inapplicability of the Practice Note to wish lists for discovery. 18. The third category requires production of insurance policies and the like. That is conceded to be relevant, because there is a question as to the cross-liability (or cross-indemnity) provisions of the insurer's policies. As I understand it, URS has pointed to one policy that is available to the parties generally. It has said, further, that there is another policy in existence which was given to it, subject to a specific claim of confidentiality, by the plaintiffs. If the plaintiffs will consent to the release of the policy (on any necessary terms as to confidentiality), URS will provide it. 19. Because none of the requests for disclosure was made against the plaintiffs themselves, they were not represented today. I have, however, expressed my view that it would be appropriate for the plaintiffs either to give their consent to the production of the insurance documents or themselves to provide those documents. I hope that it will not be necessary to re-list the matter to ensure that such an order can be made, or to settle the conditions on which those documents should be provided. 20. The first category of documents sought from URS requires production of, basically, everything that URS has ever looked at in relation to the PB design. That was said to be justified again because of the two specific facts in issue to which I have referred. Again, because the category goes far beyond that limited purpose, it does not seem to me to be justifiable. 21. Further, and for the reasons I have given, the materiality of those facts in issue, given the extent of the design prepared by PB, may be very much a matter of comment by Dr Burman. In effect, as I understand it, what Dr Burman wishes to have confirmed is that PB did not design for the requisite ground conditions or did not make adequate allowance for the width of the span. Unless it can be said that neither of those things will be apparent from the design documents that are prepared, then (as was the case with PB) it cannot be said that disclosure at this stage is necessary. 22. I repeat that the only "evidence" of Dr Burman's views does not touch on this question (and in this case I have said "evidence" because, although it was given on affidavit, it is on information and belief). 23. Exactly the same factors of delay are present. Equally, exactly the same factors of cost are present. 24. In short, I am not satisfied that the disclosure sought from either PB or URS is necessary to enable PSM to complete its evidence. I am not satisfied that it is necessary for the resolution of the real issues in the proceedings. And I am not satisfied that now to order the disclosure sought would be consistent with the just determination of the proceedings, the efficient disposal of the Court's business, the efficient use of Court and other resources, and the timely and cost effective disposal of the real issues in the proceedings. 25. For those reasons I order that the amended notice of motion filed for the third defendant be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2015