Federal Court of Australia

Port Binnli Pty Ltd v North Queensland Bulk Ports Corporation Limited [2020] FCA 1843

File number(s):

QUD 937 of 2018

Judgment of:

GREENWOOD J

Date of judgment:

21 December 2020

Catchwords:

PRACTICE AND PROCEDURE – consideration of aspects of discovery and the delivery of expert reports and a mechanism adopted to determining whether information was provided to an expert which might be thought to give rise to a conflict of interest notwithstanding that the expert is satisfied that no conflict arises

Legislation:

Federal Court of Australia Act 1976 (Cth), s 37P

Division:

General Division

Registry:

Queensland

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

19

Date of hearing:

18 December 2020

Counsel for the Plaintiffs:

Mr G Handran QC

Solicitor for the Plaintiffs:

McBride Legal

Counsel for the Defendant:

Mr E Goodwin

Solicitor for the Defendant:

Allens

ORDERS

QUD 937 of 2018

BETWEEN:

PORT BINNLI PTY LTD ACN 062 169 751

First Plaintiff

MACKAY MARINA PTY LTD ACN 076 840 643

Second Plaintiff

AND:

NORTH QUEENSLAND BULK PORTS CORPORATION LIMITED ACN 136 800 218

Defendant

order made by:

GREENWOOD J

DATE OF ORDER:

21 DECEMBER 2020

THE COURT ORDERS THAT:

1.    In accordance with Orders 6(b) and 7 of the orders made on 5 June 2020, the parties undertake discovery as follows:

(a)    by 5 February 2021, the defendant deliver to the plaintiffs:

(i)    its proposal for the scope of its discovery; and

(ii)    its proposed document management protocol;

(b)    by 12 February 2021, the plaintiffs deliver their response to the defendant’s proposals in paragraph 1(a) above;

(c)    in the event that the defendant does not accept some or all of the plaintiffs’ response:

(i)    the parties confer and attempt to agree the scope of the defendant’s discovery and a document management protocol by 19 February 2021;

(ii)    by 26 February 2021, the defendant file and serve any application and supporting affidavit material in respect of its discovery and document management protocol in relation to the application contemplated by para 1(c)(iii); and

(iii)    any application in respect of discovery and document management and the document management protocol be listed for hearing on 5 March 2021 at 9.30am;

(d)    in the event that the defendant accepts the plaintiffs’ response in respect of discovery and the document management protocol:

(i)    the parties exchange discovery by 26 March 2021; and

(ii)    the proceeding be listed for a case management hearing on 30 March 2021 at 9.30am.

2.    The defendant is directed to send a letter as described at [14] and [15] of the reasons published with these orders.

3.    Costs be costs in the proceeding.

4.    Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with the resolution of steps to be taken to advance the conduct of the proceeding having regard to issues which have emerged between the parties concerning discovery and the time for completing, filing and serving expert reports.

2    It is not necessary to set out any particular detail in relation to the proceedings. It is sufficient to say this.

3    Until 1999, the Port of Mackay (administered from time to time by the legal entities described in the further amended statement of claim of the plaintiffs), comprised parallel breakwater walls, extending outward to the east before curving towards each other to form a narrow entrance between Bagley Point and Forgan-Smith Point, so as to provide safe harbour, navigation and mooring.

4    In 1999, the Port was extended to the south to create a Southern Harbour.

5    These extension works were undertaken by constructing a parallel man-made breakwater wall curving in to meet the southern part of the existing breakwater (otherwise known as the “Southern Breakwater Extension”) and the removal of a section of what was originally the defining southern limit of the Port (which then became the Middle Breakwater).

6    In contemplation of the construction of the Southern Breakwater Extension, the first plaintiff in the proceeding, Port Binnli Pty Ltd, entered into Heads of Agreement and a document described as the “Main Seabed Lease” with the Mackay Port Authority. In simple terms, these documents contemplated the plaintiffs making improvements in an area within the Southern Harbour for the purposes of operating a commercial marina and associated facilities for the berthing and mooring of vessels.

7    In the proceedings, the plaintiffs say that the Port Authority or the State of Queensland, or both, knew that if the Port were to be developed so as to increase the capacity of mooring facilities for small craft, the Port would need to be developed so as to make it a refuge and safe anchorage for small craft at whatever mooring facilities it agreed to permit or allow so that small craft making use of those facilities would not suffer damage and would not require regular attendance by their owners to ensure craft safety in the weather conditions that would affect those moorings; and knew that a part of the Port would need to be made suitable for the construction and viable operation of a marina otherwise described in the proceedings as the “Small Craft Harbour”.

8    The plaintiffs say that in order to implement the development of a Port that was intended to achieve those objectives, the Port Authority or the State of Queensland, or both, commissioned Connell Wagner to provide an assessment of the anticipated wave climate that the proposed Southern Harbour would be required to accommodate to make the proposed Southern Harbour a safe haven for the mooring of small craft.

9    The plaintiffs say that as a result of the work carried out by Connell Wagner, and the advice contained in nominated reports, the Port Authority and the State of Queensland were aware, or ought reasonably to have been aware, that mooring facilities in the proposed Southern Harbour had to limit the wave climate at mooring locations to satisfy the criteria for “good wave climate specified in Australian Standard 3962 (otherwise known as the “Wave Climate Requirements”).

10    Leaving aside the defendant’s answers to the particular formulation of causes of action which, if good, are said to give rise to the remedies claimed in the amended originating application and the further amended statement of claim, the defendant says, on this point, that the Mackay Port Authority engaged Connell Wagner Pty Ltd (“CWPL”) to design and construct the Small Craft Harbour and that prior to 25 November 1997, CWPL had engaged Lawson and Treloar Pty Ltd (“LTPL”) to undertake numerical modelling of wave heights at the site of the proposed Small Craft Harbour; that the principal engineer at LTPL who undertook the numerical modelling was Mr P D Treloar; and that by a report called the Small Craft Harbour Coastal Processes Report, CWPL advised the Port Authority that it expected that the Small Craft Harbour would comply with the Australian Standards for wave heights.

11    The plaintiffs say that the Small Craft Harbour does not comply with the Australian Standards because it does not address a climate feature called the “northerly fetch” which gives rise to “northerly fetch waves” within the marina. The defendant denies that contention but says that to the extent that the “northerly fetch” influences the marina and causes the marina within the Small Craft Harbour from time to time not to comply with Australian Standards, no conclusion arises that there was a lack of reasonable care and skill in the design and construction of the Small Craft Harbour.

12    The point of contention that has arisen is that the plaintiffs propose to rely upon an expert report from Dr Douglas Treloar. The defendant says that it would need to carefully consider the report of Dr Treloar and determine whether any application to disqualify Dr Treloar should be made because the defendant is concerned that Dr Treloar may have received confidential information from the Port Authority during an earlier engagement in relation to the original design of the Small Craft Harbour. The concern is that that earlier engagement may put Dr Treloar in a position of conflict. The defendant says that any further consideration of the possible conflict must await the delivery of the expert report from Dr Treloar. The plaintiffs say that they do not want to go to the considerable expense of procuring a final report from Dr Treloar which is then the subject of an application that Dr Treloar disqualify himself.

13    The defendant says that the plaintiffs have previously provided various reports as early as November 2008 in relation to wave climate within the Small Craft Harbour prepared by Dr Treloar including one report entitled “Existing Wave Conditions within Port Binnli Marina” dated 13 April 2018.

14    Having regard to these background matters, the defendant says that it is apprehensive that Dr Treloar may be compromised because of access to earlier information confidential to the Mackay Port Authority and, relevantly now, the defendant.

15    However, the defendant is not able to identify any information given to Dr Treloar which is said to be confidential thus giving rise to the apprehension. The defendant simply fears that Dr Treloar might have been given some confidential information either by CWPL or the Mackay Port Authority. Moreover, the defendant says that it has sought to identify whether Dr Treloar was provided with particular information which might now be thought to be confidential. However, the enquiries made with Connell Wagner, through its present incarnation, have not proved very fruitful.

16    The plaintiffs seek to rely upon Dr Treloar because he does not regard himself as being conflicted and he has the relevant knowledge, skills and understanding of the questions in issue. The present difficulty seems to be one of adopting a mechanism which will enable the defendant to know whether Connell Wagner provided LTPL with information that might now be regarded as confidential or otherwise giving rise to a conflict on some basis.

17    I propose to make a direction under s 37P of the Federal Court of Australia Act 1976 that the defendant send a letter (presumably attached to an email given the difficulties with Australia Post in its delivery timetables) to the relevant senior officer (presumably the Chief Executive Officer) of Connell Wagner or CWPL or whatever entity is now regarded as having authority to act as the guiding mind in whatever consolidated structure now subsists of what was CWPL. That may be Aurecon. The subject matter of the letter is to explain the claims now made by the plaintiffs and the relevant concern held by the defendant in relation to the proposal that Dr Treloar is to provide an expert report, on behalf of the plaintiffs, in relation to the claims made by the plaintiffs against the defendant. Those claims can no doubt be explained in a synthesised and clear way. The letter ought to call upon the recipient to make such enquiries as may be necessary to determine the scope of the material provided by CWPL to LTPL for the purposes of the work done by LTPL in relation to the improvements at the Port. The letter should indicate that it is being sent by reason of an order of the Court to that effect. It should provide the recipient with a reasonable period to respond of no less than 14 days and is to be sent to the recipient by 25 January 2021.

18    Subject to the response from the recipient, if any, consideration can then be given to making orders for subpoenas.

19    As to the discovery timetable, I have considered both sets of orders. I propose to adopt the timetable largely in terms suggested by the defendant, but with some adjustments. Discovery ought to take its course prior to the resolution of the questions concerning Dr Treloar.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.

Associate:

Dated:    21 December 2020