FEDERAL COURT OF AUSTRALIA

Macquarie Generation v Coal & Allied Industries Ltd [2001] FCA 1638

MACQUARIE GENERATION V COAL & ALLIED INDUSTRIES LIMITED

NO. N 477 OF 2001

BEAUMONT J

9 NOVEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The respondent’s discovery of documents (save in respect of e-mails and electronic documents) in instalments in accordance with the categories of documents attached to the order of 24 August 2001 and marked “C”, be completed on or before 14 December 2001.

2.                  The respondent give discovery of e-mails and electronic documents in accordance with the protocol set out in the letter from Allens Arthur Robinson to Speed & Stracey dated 7 November 2001 in instalments in accordance with the categories of documents attached to the order of 24 August 2001 and marked “C”, such discovery to be completed on or before 31 January 2002.

3.                  The parties exchange witness statements as to the facts and lists of documents for tender on or before 8 February 2002.

4.                  The matter be fixed for final hearing on 25 February 2002.

5.                  Philip John Ward be granted access to the confidential particulars to paragraphs 11, 19, 20 and 22 of the applicant’s statement of claim, upon execution by him of a confidentiality undertaking in the form of the confidentiality undertaking agreed between the parties, which is exhibit “MP-1” to the affidavit of Paul Manvers Meadows sworn 7 November 2001.

6.                  Liberty to apply be reserved.

7.                  Costs reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BEAUMONT J:

1                     My reasons for varying the existing timetable which is currently reflected in the short minutes of orders made on 24 August 2001, superseding in part, the orders made on 4 June 2001, are as follows.

2                     First, order 1 which I have now made is proposed by the respondent and its making is now not opposed by the applicant.

3                     Order 2 is in the same position and it may be noted that in the course of today’s hearing, the parties agreed on a protocol to govern the implementation of order 2 which is fully recorded on the transcript.

4                     Order 3 is as asked in terms of timing but has now been limited significantly, restricting its operation to witness statements as to the facts by omitting the word “lay witness” and inserting a reference as to the facts.  That is to say, any witness who speaks as to the facts but without expressing any opinion, whether an industry witness or otherwise, will be governed by the provisions of order 3.

5                     I have declined to make orders 4 to 8 sought by the respondent in its proposed short minutes of order.  Some of those orders, for instance, orders 4 and 7, are mechanical, and with the level of representation available to the parties in this matter, need not be the subject of specific direction. 

6                     I have declined to make an order for the exchange of expert reports at this stage.  By “expert reports”, I have made it clear to the parties that I mean a report by an expert by way of opinion evidence.  It seems to me from the material already before the Court, even at this interlocutory stage of the proceedings, that it is likely that a substantial body of factual evidence will need to be tendered and will, in some respects, possibly be contentious.

7                     That being so, it seems to me important that any opinion evidence proceed on the footing that is as sure as is reasonably practicable in terms of the factual context in which the opinion is expressed.  For that reason, although I have ordered the exchange of witness statements dealing with the facts, it seems to me that until the hearing has proceeded some distance, and at least until the cross-examination of the lay witnesses has concluded, it is unlikely that expert opinion evidence may be usefully given, at least so far as the Court is concerned.  I have therefore declined to give any direction for the filing of opinion evidence before the commencement of the final hearing.

8                     I have also decided to dispense with the need for the parties to file witness statements in reply.  That is positively not required by the applicant.  I cannot see, at this stage at least, why the respondent would require that information before the hearing commences.  Order 9 proposed by the respondent dealt with the exchange of expert reports in reply.  That, of course, is a matter that on the view I take, does not arise at this stage. 

9                     A substantial area of dispute between the parties today, which has been more than fully canvassed in the affidavit material and in the helpful submissions of Counsel, is the date upon which the final hearing is to commence.  When the matter first came before me on 4 June 2001, I proposed to the parties that the most practical way to proceed would be to fix a hearing date some distance in advance and then to work backwards from that date.  After some discussion, I fixed a final hearing date by way of commencement of the trial as 5 February 2002. 

10                  There has been, as the affidavit evidence now before me amply demonstrates, an immense amount of activity on both sides of the record in the preparation for the final hearing.  However, it does now appear that it is not feasible to contemplate the completion of the discovery process even before 14 December 2001, let alone 5 October 2001 as envisaged in the orders made in relation to the timetable on 24 August 2001.  To that extent, there has been some slippage in the timetable. 

11                  Whilst the applicant vigorously opposes any remission of the commencement of the hearing, the respondent equally vigorously has applied for the hearing to be deferred until the middle of April.  I have found this a difficult issue to resolve.  The difficulty arises mainly from the necessary circumstance that my knowledge of the scope of the true dispute between the parties at the trial is, of course, limited at this stage. 

12                  Doing the best I can from the volume of material I have been shown, I have the impression that there will be considerable scope for dispute as to the facts.  That being so, I have come to the view that it will be difficult for at least one of the parties to be in a position to proceed on 5 February 2002.  That difficulty springs directly from the timing of the completion of the discovery process at a date not long before the Christmas period.  It has been forcefully submitted on behalf of the respondent, and I accept, that it may well be difficult for the respondent to work effectively during the Christmas/New Year period with the expert witnesses which it proposes to call.  Giving that matter substantial weight, I have come to the view, which I have already tentatively expressed to Counsel, that I should vary the commencement date by three weeks.  That is to say, that the hearing should commence on 25, rather than 5, February 2002.

13                  I appreciate that this will mean that considerable effort will be required to be applied in the preparation of the matter during at least part of the January period, but I cannot regard that as an overwhelming consideration.  I take into account also the variation I have made to the original timetable, which did envisage that expert opinion reports would be exchanged before the final hearing.  For the reasons I have given, I do not think that such a requirement is now either necessary or desirable.

14                  In those circumstances, and bearing in mind the general policy of the Court, in the interests of the promotion of settlement and otherwise, that trial dates should as far as practicable be kept certain, I have modified the hearing date, but for a period of three weeks only.  In my view, that should be sufficient to enable both sides to prepare for a hearing on the factual issues that will be presented for determination. 

15                  Accordingly, I make the orders in accordance with the short minutes of orders which I have initialled and dated today and placed with the papers.  I reserve the costs of today's hearing.

Associate:

Dated:                November 2001