FEDERAL COURT OF AUSTRALIA
McMahon Services Australia Pty Ltd v Howmet Systems Australia Pty Ltd, formerly Alcoa Australia Rolled Products Pty Ltd (No 2) [2022] FCA 545
ORDERS
MCMAHON SERVICES AUSTRALIA PTY LTD Applicant | ||
AND: | HOWMET SYSTEMS AUSTRALIA PTY LTD FORMERLY ALCOA AUSTRALIA ROLLED PRODUCTS PTY LTD (ACN 069 853 229) Respondent | |
DATE OF ORDER: | 13 May 2022 |
THE COURT ORDERS THAT:
Discovery
1. The respondent is to make discovery of documents within the categories identified in the column titled ‘Court’s Decision’ in the applicant’s Redfern Schedule attached as Annexure 1 hereto.
2. The applicant is to make discovery of documents within the categories identified in the column titled ‘Court’s Decision’ in the respondent’s Redfern Schedule attached as Annexure 2 hereto.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’SULLIVAN J:
INTRODUCTION
1 There are two applications for discovery, the first in time by the respondent filed on 18 March 2022, the second by the applicant filed on 21 March 2022.
PROCEDURAL HISTORY
2 On 11 February 2022, the Court made orders requiring any party requesting discovery and production of documents to do so adopting the Redfern Discovery Procedure set out in [8.4] to [8.7] of the Commercial and Corporations Practice Note of this Court.
3 Both parties have provided Redfern Schedules together with written submissions and affidavits in support of their respective applications. The parties requested the applications be determined on the papers.
4 I have determined each party’s applications for discovery and production by making a ruling in the appropriate column in each of the Redfern Schedules, subject to one exception which is an objection by the respondent to production of categories 3 and 12 of documents sought by the applicant in its’ Redfern Schedule on the grounds of litigation privilege. That objection may need to be the subject of evidence and/or argument and I will make procedural orders for that argument at the end of these reasons.
Documents relied upon
5 The applicant reads:
(a) The third affidavit of Katarzyna Fidos sworn and filed on 21 March 2022 (third Fidos affidavit); and
(b) The fourth affidavit of Katarzyna Fidos sworn and filed on 4 April 2022 (fourth Fidos affidavit).
6 The respondent reads:
(c) The affidavit of Joseph Gerard of Mulcahy affirmed and filed on 16 June 2021 (first Mulcahy affidavit);
(d) The affidavit of Joseph Gerard Mulcahy affirmed and filed on 18 March 2022 (second Mulcahy affidavit); and
(e) The affidavit of Joseph Gerard Mulcahy affirmed and filed on 4 April 2022 (third Mulcahy affidavit).
Principles
7 The Federal Court Rules 2011 (Cth) (FCR) reflect the overarching purpose of the civil practice and procedure provisions pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act): Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) [2011] FCA 1396, [21] (Collier J).
8 FCR 20.14 deals with standard discovery. Such an order requires a party to discover documents: FCR 20.14(1)(a)
(a) that are directly relevant to the issues raised by the pleadings or the affidavits; and
(b) of which, after reasonable search, the party is aware; and
(c) that are, or have been, in the party’s control.
9 FCR 20.14(2) sets out the requirements for direct relevance for the purposes of FCR 20.14(1)(a). It provides:
(2) For paragraph (1)(a), the documents must meet at least one of the following criteria:
(a) the documents are those on which the party intends to rely;
(b) the documents adversely affect the party’s own case;
(c) the documents support another party’s case;
(d) the documents adversely affect another party’s case.
10 In this matter, the parties seek discovery by category of documents, which is non-standard discovery. The parties do not identify any of the criteria mentioned in FCR 20.14(1) and (2) that should not apply pursuant to FCR 20.15(1)(a), and so I incorporate into the orders for discovery by category, the requirements in FCR 20.14(1) and (2).
11 To obtain an order for discovery from this Court, the parties are required to establish one or more of the following circumstances: Central Practice Note: National Court Framework and Case Management (CPN) (CPN-1 at 10.6):
(a) That the Discovery Request facilitates the just resolution of the proceedings as quickly, inexpensively and efficiently as possible;
…
(d) The Discovery Applicant has adequately justified the need for the Request including demonstrating:
(i) the utility of the Request and the appropriateness of discovery occurring at that time;
(ii) the relevance and importance of the documentation or information sought;
(iii) the limited and targeted nature of the Request; and
(iv) that the documents sought are, or are very likely to be, significantly probative in nature, or the documents materially support, or are materially adverse to, any party’s case in the proceeding.
The applicant’s application for discovery
12 I have attached as Annexure 1 to these reasons, the applicant’s Redfern Schedule with my rulings.
13 I make the following points in addition to the matters in the Schedule:
14.1 Category 1
(a) The time period sought by the applicant is excessive. I accept the respondent’s submissions and have limited the period within which the documents requested are to be discovered; and
(b) Sub-category 4 will be limited to Variations and to the extent work alleged not to be the subject of a Variation Order, to work consequent upon a Change to Services as defined in [3.2] of the statement of claim.
14.2 Category 3
(a) It makes no difference that the respondent denies the allegation. That is not the touchstone of what is required for discovery; and
(b) The respondent claims settlement privilege over the requested documents relying on s 131(1) of the Evidence Act 1995 (Cth). The privilege, if available, extends to prevent production of the documents discovered. It is not possible to determine the issue of whether the documents to be discovered are privileged from production until such time as a list is provided, any supporting evidence in support of that claim is filed and served, and further submissions are filed and served.
14 Consequently, although I have ordered discovery, the request for production of these documents is stood over.
14.3 Category 12 - as for category 3.
14.4 Category 10
(a) The objections by the respondent are not to the point; and
(b) The time period sought by the applicant is excessive. I accept the respondent’s submissions and have limited the period within which the documents requested are to be discovered.
14.5 Category 17
(a) As for category 1, the date range will be limited;
(b) To the extent there is duplication of categories 7, 8, 9 and 10, once discovered, there is no need to discover again other than by cross-reference if necessary; and
(c) The sub-categories claimed are the same for category 1 sub-categories, however objection is taken to some of the sub-categories on this occasion. Hence the differences between the two.
The respondent’s application for discovery
15 I have attached as Annexure 2 to these reasons, the respondent’s Redfern Schedule with my rulings.
16 I make the following points in addition to the matters in the Schedule:
17 In each of the following categories, the applicant objects to discovering this category of documents on the basis that it is broad, oppressive and constitutes ‘fishing’. The applicant also contends the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings.
16.1 Category 1
18 The applicant does not object to the disclosure of documents relating to the development of the applicant’s work methodology for the removal of asbestos and documents relating to the scheduling or planning of the Works (Services).
19 That there is some merit in the applicant’s submission as to the breadth of the request, however, there is an issue in this matter as to the understanding by the applicant of the scope of the Services. The order for discovery reflects that issue.
16.2 Category 6
20 The applicant does not object to the discovery of information from the suppliers or manufacturers (of Specialised Demolition Equipment) in the applicant’s possession, custody or control concerning the performance capabilities of the Specialised Demolition Equipment.
21 There is an issue in this matter concerning the applicant’s Specialised Demolition Equipment and its suitability for the Services. The order for discovery reflects that issue.
16.3 Category 12
22 The applicant does not object to the discovery of:
(a) Weekly Toolbox Meeting Minutes (recorded in McMahon Form F627); and
(b) Daily Pre-Start Meeting Minutes (recorded in McMahon Form F235).
23 There is merit in the applicant’s objection on the basis of the breadth of the request and relevance. I do not consider there is a basis for ordering discovery of the remaining documents sought by the respondent.
16.4 Category 13
24 The applicant does not object to the discovery of:
(a) Documents reporting on or recording delays and disruptions arising out of mismanagement of the planning, timing and sequencing of the Services; and
(b) Documents reporting on or recording delays and disruptions arising out of demolition equipment that was inadequate or not fit for purpose.
25 The applicant’s attempt to limit discovery of these documents in the manner set out above does not reflect that the documents sought are relevant because of the global cost claim advanced by the applicant.
16.5 Category 26
26 There is an issue on the pleadings about internal plant hire. In my view, the request for discovery is, in general terms, appropriate although too wide in its compass. The order reflects that view.
Procedural orders for the claimed litigation privilege
27 Subject to hearing from the parties as to timeframe, I will make the following procedural orders in relation to the respondent’s claim for litigation privilege:
(1) The respondent is to file and serve such affidavit evidence as it may be advised and written submissions, not exceeding 10 pages in length, together with a table, in Word format, identifying each document upon which it claims litigation privilege and the basis for such claim.
(2) The applicant is to file and serve such affidavit evidence as it may be advised and written submissions, not exceeding 10 pages in length, in opposition to the respondent’s claim for litigation privilege. The applicant shall also respond to each claim for litigation privilege by completing its response in the table provided to it pursuant to (1) above.
(3) The respondent is to file and serve any submissions in reply to the applicant’s submissions in response provided pursuant to (2) above as well as indicating on the table provided pursuant to (1) and (2) above whether it maintains the claim for litigation privilege.
(4) The Court will, at the request of the parties, either hear the claim for litigation privilege orally or determine it the papers.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. |
Associate:
Dated: 13 May 2022
Applicant’s Redfern Schedule - Annexure 1
No. | Document(s) or category of documents requested | Relevance and materiality according to the requesting party | Response / objection to document request | Position as at 18.03.2022 | Court’s Decision | |
Pleading ref | Comments | |||||
1. | All documents, correspondence and communications including emails, transmittals, reports, meeting notes, board or meeting papers and minutes between the Respondent, Howmet Systems Australia Pty Ltd, formerly Alcoa Australia Rolled Products Pty Ltd (AARP) or a representative of AARP and: • Arconic Inc (or Alcoa Australian Holdings Pty Ltd) between 23 August 2016 and 18 January 2020; and • Howmet International Holding Company LLC from 18 January 2020; relevant to: 1. The progress and performance of the Project; and 2. The costs incurred on the Project; and 3. The reasons for any delay or disruption on the Project; and 4. Claims made by McMahon for performing work outside the Contract scope of works (the Services); and 5. Payment of McMahon’s entitlements under the Contract in respect of the Variations and indirect costs. | Defence [2(c)], [13], [90(a)], [112], [114(c)] and [114(d)] | The documents are directly relevant to AARP’s: 1. Allegation that delays/increased costs were caused by McMahon’s failure to exercise due skill, care and diligence in the execution of the Services by mismanaging the planning, timing and sequencing of the Services (Defence [114(c)] and/or McMahon’s underestimation of the tender price (Defence [114(d)]; and 2. Allegation that McMahon has been paid all of its proper entitlements under the Contract in respect of Variations and indirect costs (Defence [90(a)]; and 3. Denial that it knew that McMahon was performing work outside the scope of the Services under the Contract and expected to be paid for those works (Defence [112 (a) and (b)]). | AARP will produce documents in its possession, custody or control which respond to sub-paragraph 5 of this category. Subject to the date range being limited to 31 December 2017, AARP will produce documents in its possession, custody or control which respond to sub-paragraphs 1 to 4 of this category. This temporal limitation in relation to sub-paragraphs 1 to 4 of this category is sought on the following grounds: • The unlimited and untargeted nature of the request places an unreasonable burden on AARP, is disproportionate to the case and unfair in the circumstances. • McMahon ceased performing the Services and demobilised from site in October 2017. This fact is not in contest. • The documents identified in sub-paragraphs 1 to 4 concern matters which occurred during the course of the performance of the Services. Accordingly, any such request should have a temporal connection to the period in which the Services were performed. • Sub-paragraphs 1 to 4 of this category require AARP to make inquiries of an unlimited period which currently extends in excess of 4 years after McMahon ceased performing the Services. • The requirement for documents responding to sub paragraphs 1 to 4 post December 2017 are unlikely to be of sufficient probative value to justify the burden sought to be imposed on AARP. | McMahon accepts the proposed date range limitation for sub-paragraph 1 and presses its request in relation to sub-paragraphs 2-4 | The respondent is to discover the documents the subject of sub-category 1 for the period 23 August 2016-31 December 2017 and for the documents the subject of sub-categories 2-5 for the period 23 August 2016-31 August 2018. |
2. | All documents, correspondence, communications, and records, including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports relevant to the First Extension, Second Extension, Third Extension and Fourth Extension. | Statement of Claim (SOC) [12], [58]-[62]; Defence [12], [58]-[62]; Reply [8], [34] | The documents are directly relevant to McMahon’s allegation that it: 1. was advised by AARP that it required agreement to the First Extension to enable McMahon to remain on Site and for AARP to process payments under the Contract (Reply [34(a)(i)]); and 2. preserved its right to claim for additional time and costs arising from the Variations and/or the First Extension (Reply [34(a)(ii)]); and 3. the subsequent extensions were agreed on the same terms and conditions as the First Extension (Reply [35(a)(ii), [36(a)(ii)], [37(a)]). | Subject to this category excluding documents which AARP reasonably believes are already in the possession of McMahon, AARP will produce documents in its possession, custody or control which respond to this category. Without this limitation, the category will extend to common correspondence and documents such as the Weekly Site Reports and Project Status Meeting Minutes which were prepared and circulated by McMahon. The exclusion of documents which AARP reasonably believes are already in the possession of McMahon conforms with the requirement of s.37M of the Federal Court of Australia Act 1976 to conduct the proceeding in a way that is consistent with the overarching purpose. | Agreed on the basis that the Respondent will produce on request any specific documents identified by the Applicant which the Applicant cannot locate. | |
3. | All documents, correspondence, communications, and records, including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports relevant to calculation of a daily delay rate in or about January 2017 and the proposal to pay McMahon a daily rate of $39,645.84 for each day of delay suffered by McMahon. | SOC [16]; Defence [16] | AARP has denied that it proposed to pay McMahon the daily rate for delay as alleged. | AARP objects to this category on the following grounds. • The fundamental assumption underpinning the request for this category is contested by AARP. • McMahon substantiates this category by reference to paragraph 16 of the SOC in which it alleges that AARP proposed a daily rate of $39,645.84 for each day of delay suffered by McMahon. • At paragraph 16 of its Defence, AARP has denied the allegation. • What McMahon is asking here is for AARP to produce documents relevant to an allegation it has denied. • Further, no particulars were given of this allegation other than a footnote to paragraph 90 of its SOC. That footnote, however, is inserted against the first sentence of paragraph 16 which is irrelevant to the allegation that underpins this category. • Putting that matter to one side, paragraph 90: • does not allege that AARP proposed to pay McMahon a daily rate of $39,645.84 for each day of delay suffered by McMahon; • concerns a particular Variation - ie VO84b and alleges that McMahon claimed the sum of $39,371.66 and further, in relation to VO84b, AARP accepted that there was 7 days’ time costs which totalled $33,077.45. None of these matters are relevant to the allegation underpinning this request. | McMahon presses its request | The respondent is to discover documents requested by the applicant in category 3. The request for production is stood over pending determination of the respondent’s claim for settlement privilege. |
4. | All documents, correspondence, communications, and records, including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports relevant to the meeting held on 13 February 2017 and matters discussed and agreed at the meeting. | SOC [17], [63-70], [71]-[72]; Defence [17], [63]-[70], [71]-[72] | The documents are directly relevant to: 1. the terms of the agreement reached between the parties on 13 February 2017; and/or 2. representations made by AARP to McMahon at the meeting; and 3. further relevant to allegations made by AARP (see for example Defence [89(b)(i) and (ii)]) as to the basis upon which subsequent Variations were performed by McMahon. | Subject to this category excluding documents which AARP reasonably believes are already in the possession of McMahon, AARP will produce documents in its possession, custody or control which respond to this category. Without this limitation, the category will extend to common correspondence and documents such as the Weekly Site Reports and Project Status Meeting Minutes which were prepared and circulated by McMahon. The exclusion of documents which AARP reasonably believes are already in the possession of McMahon conforms with the requirement of s.37M of the Federal Court of Australia Act 1976 to conduct the proceeding in a way that is consistent with the overarching purpose. | Agreed on the basis that the Respondent will produce on request any specific documents identified by the Applicant which the Applicant cannot locate. | |
5. | All documents, correspondence, communications, and records, including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, prepared by AARP or received by AARP from a third party, as at 16 December 2015 and 18 March 2016, recording or evidencing the potential for asbestos to be on Site (with the exception of the Asbestos Register). | SOC [27], [29], [31]; Defence [27], [29(c)], [31]; Reply [15] | The documents (or absence of documents) are directly relevant to: 1. McMahon’s allegation that AARP represented that the asbestos or asbestos containing materials on Site were of the type, in the quantities, and at the locations identified in the Asbestos Register (SOC [31.1]); and 2. AARP’s allegation that it was unreasonable for McMahon to assume that the Asbestos Register completely and accurately identified all asbestos and hazardous materials on the Site (Defence [29(c)]). | AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
6. | All documents, correspondence, communications, and records including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports recording or evidencing discussions which are alleged to have occurred on Site during the bid walks. | Defence [27(c)] | AARP alleges that Addendum No.1 dated 16 December 2015 confirmed discussions held during the bid walks on Site that there was the potential of ACM to be present in the walls of the soaking pits. | AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
7. | All documents, correspondence, communications, and records, including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, recording or evidencing the agreement between the parties to perform the Variations VO1, VO2, VO3, VO4 (part), VO5, VO8, VO9, VO10, VO11, VO12, VO13, VO16, VO17, VO18 – 24a, VO18 – 24b, VO25, VO26, VO27, VO29, VO32 (part), VO33, VO35, VO36, VO38, VO39, VO40, VO41, VO46, VO47, VO48, VO49, VO50, VO51, VO52, VO53, VO54 (part), VO57, VO59, VO60, VO61, VO62, VO63, VO64, VO66, VO68 (part), VO69, VO70, VO71, VO72, VO73, VO75, VO77, VO78 (part), VO79, VO80, VO81 and VO82 (or any of them) on the basis of an agreed lump sum (with the exception of the Quotations, the POs and the REQs). | Defence [52(a)], [52(d)], [54(a)], 89(a)(i) | The documents are directly relevant to AARP’s allegation that the Variations were performed by agreement between the parties. | Subject to this category excluding documents which AARP reasonably believes are already in the possession of McMahon, AARP will produce documents in its possession, custody or control which respond to this category. Without this limitation, the category will extend to common correspondence and documents such as the Weekly Site Reports and Project Status Meeting Minutes which were prepared and circulated by McMahon. The exclusion of documents which AARP reasonably believes are already in the possession of McMahon conforms with the requirement of s.37M of the Federal Court of Australia Act 1976 to conduct the proceeding in a way that is consistent with the overarching purpose. | Agreed on the basis that the Respondent will produce on request any specific documents identified by the Applicant which the Applicant cannot locate. | |
8. | All documents, correspondence, communications, and records, including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, recording or evidencing the agreement between the parties to perform the Variations VO4 (part), VO6, VO28, VO30, VO31, VO32 (part), VO34, VO37, VO42, VO43, VO44, VO45, VO54 (part), VO56, VO65, VO67, VO68 (part), VO74 and 78 (part) (or any of them) on the basis of the Contract rates (with the exception of the Quotations, the POs and the REQs). | Defence [52(a)], [52(d)], [54(a)], 89(a)(ii) | Subject to this category excluding documents which AARP reasonably believes are already in the possession of McMahon, AARP will produce documents in its possession, custody or control which respond to this category. Without this limitation, the category will extend to common correspondence and documents such as the Weekly Site Reports and Project Status Meeting Minutes which were prepared and circulated by McMahon. The exclusion of documents which AARP reasonably believes are already in the possession of McMahon conforms with the requirement of s.37M of the Federal Court of Australia Act 1976 to conduct the proceeding in a way that is consistent with the overarching purpose. | Agreed on the basis that the Respondent will produce on request any specific documents identified by the Applicant which the Applicant cannot locate. | ||
9. | All site diaries / daybooks or other documents recording directions given by AARP to McMahon to perform Variations and the progress of the Services and the Variations for the project prepared by AARP project managers and supervisors on the Project including Daniel Stanker and Scott Taylor. | SOC [54]; Defence [54], [114(c)] | These diaries and documents are directly relevant to AARP’s: 1. denial that it provided oral directions to McMahon to perform the Variations (Defence [54]); and 2. allegation that delays/increased costs were caused by McMahon’s failure to exercise due skill, care and diligence in the execution of the Services by mismanaging the planning, timing and sequencing of the Services (Defence [114(c)]. | AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
10. | All internal documents and records, including emails, memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, relevant to the assessment of the cost impact of the Variations and determination of what (if any) additional payment should be made to McMahon. | Defence 67(d) | The documents are directly relevant to the AARP’s allegations that: 1. McMahon has been paid all of its proper entitlements under the Contract in respect of Variations and indirect costs (Defence [90(a)]; and 2. where McMahon failed to provide AARP with detailed forecast information concerning the likely delay and the associated indirect costs in relation to the identified Variation for AARP’s review, then no delay or disruption costs would subsequently be claimed (Defence [65(e)]). | The request is a duplication of categories 7 and 8. AARP otherwise objects to this category on the following grounds: • the request assumes that an assessment was made on a global basis of the amount payable in respect of all Variations; • AARP has consistently maintained that each Variation was dealt with individually (see, by way of example, paragraph 89 of the Defence which identifies each of the Variations paid for on the basis of lump sums; Contract rates; by agreement; etc). | McMahon presses its request. | The respondent is to discover the documents the subject of this category 10 for the period 23 August 2016 to 31 August 2018. |
11. | All internal documents and records, including emails, memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, relevant to the meetings between Chris Latham and/or Joshua Boord from McMahon and Scott Taylor from AARP after 13 February 2017 at which valuations and time impacts of the identified Variations were discussed. | Defence [69]; Reply [42] | These documents are directly relevant to: 1. the terms of the agreement reached between the parties on 13 February 2017; and/or 2. representations made by AARP to McMahon at the said meeting. | Subject to this category excluding documents which AARP reasonably believes are already in the possession of McMahon, AARP will produce documents in its possession, custody or control which respond to this category. Without this limitation, the category will extend to documents such as the Weekly Site Reports and Project Status Meeting Minutes which were prepared and circulated by McMahon. The exclusion of documents which AARP reasonably believes are already in the possession of McMahon conforms with the requirement of s.37M of the Federal Court of Australia Act 1976 to conduct the proceeding in a way that is consistent with the overarching purpose. | Agreed on the basis that the Respondent will produce on request any specific documents identified by the Applicant which the Applicant cannot locate. | |
12. | All internal documents and records, including emails, memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, relevant to costings, calculation or assessment of Delay Claim No.1 and determination of what (if any) additional payment should be offered or made to McMahon. | SOC [72]; Defence [72] | The documents are directly relevant to AARP’s: 3. allegations that McMahon has been paid all of its proper entitlements under the Contract in respect of Variations and indirect costs (Defence [90(a)]; and 4. denial that it was a term of the agreement reached on 13 February 2017 that AARP would pay to McMahon all indirect costs incurred for variations previously performed on receipt of information to substantiate claims for those costs ([Defence [64]). | AARP will discover documents relevant to this category which will appear at part 2 of the List of Documents, in respect of which, it will claim settlement privilege on the grounds that any such documents may be excluded under s.131 of the uniform Evidence Acts. In that context, AARP objects to the production of these documents on the following grounds: • The category calls for discovery of documents relating to a settlement offer in respect of Delay Claim No. 1 (which was not accepted by McMahon). • At paragraph 72(b) of AARP’s Defence it refers to paragraph 90(b) in answer to the allegation. Paragraph 90(b) of AARP’s Defence contains an objection to reference being made to that offer on the grounds that the offer was made as part of an ongoing and incomplete negotiation with McMahon to resolve a substantial claim and, properly construed, constitutes a settlement offer which was communicated to McMahon on a without prejudice basis. | The respondent has indicated it will discover documents within this category but claims settlement privilege against production. The request for production is stood over pending determination of the respondent’s claim for settlement privilege. | |
13. | All internal documents and records, including emails, memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, relevant to costings, calculation or assessment of indirect costs included in VO77 (Warm Mill Sludge), VO78 (Coolant Cellar Double Lined Tanks), and determination of what (if any) additional payment should be offered or made to McMahon. | SOC [72]; Defence [72] | The documents are directly relevant to AARP’s allegation that McMahon has been paid all of its proper entitlements under the Contract in respect of Variations and indirect costs (Defence [90(a)]. | AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
14. | All documents, correspondence, communications, and records including internal and external emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports relevant to the existence and removal of sludge in the coolant cellar and delay or disruption caused by performance of those works by a third party. | Defence [72(v)(A)]; Reply [43(c)] | The documents are directly relevant to AARP’s allegation that VO77 did not concern a claim for additional or changed works. | Subject to this category excluding documents which AARP reasonably believes are already in the possession of McMahon, AARP will produce documents in its possession, custody or control which respond to this category. Without this limitation, the category will extend to documents such as the Weekly Site Reports and Project Status Meeting Minutes which were prepared and circulated by McMahon. The exclusion of documents which AARP reasonably believes are already in the possession of McMahon conforms with the requirement of s.37M of the Federal Court of Australia Act 1976 to conduct the proceeding in a way that is consistent with the overarching purpose. | Agreed on the basis that the Respondent will produce on request any specific documents identified by the Applicant which the Applicant cannot locate. | |
15. | All internal documents and records, including emails, memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, relevant to costings, calculation or assessment of indirect costs included in VO84(a) and VO84(b), and determination of what (if any) additional payment should be offered or made to McMahon. | SOC [90]; Defence [90] | The documents are directly relevant to AARP’s allegation that McMahon has been paid all of its proper entitlements under the Contract in respect of Variations and indirect costs (Defence [90(a)]. | AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
16. | All internal documents and records, including emails, memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports, relevant to costings, calculation or assessment of indirect costs included in Progress Claim PC19-2 and determination of what (if any) additional payment should be offered or made to McMahon. | SOC [97]; Defence [97] | The documents are directly relevant to AARP’s allegation that McMahon has been paid all of its proper entitlements under the Contract in respect of Variations and indirect costs (Defence [90(a)] and [97]). | AARP will produce documents in its possession, custody or control relevant to its determination of Progress Claim PC19-2. | AARP will produce documents in its possession, custody or control which respond to this category. | |
17. | All internal documents and records, including emails, memorandums, file notes, meeting notes, meeting minutes or records of meetings, and reports (including but not limited to AARP daily records of plant and personnel on Site) relevant to: 1. The progress and performance of the Project; and 2. The costs incurred on the Project; and 3. The reasons for any delay or disruption on the Project; and 4. Claims made by McMahon for performing work outside the Contract scope of works (the Services); and 5. Payment of McMahon’s entitlements under the Contract in respect of the Variations and indirect costs. | SOC [112]; Defence [90(a)], [112], [114(c)] and [114(d)] | The documents are directly relevant to AARP’s: 1. Allegation that delays/increased costs were caused by McMahon’s failure to exercise due skill, care and diligence in the execution of the Services by mismanaging the planning, timing and sequencing of the Services (Defence [114(c)] and/or McMahon’s underestimation of the tender price (Defence [114(d)]; and 2. Allegation that McMahon has been paid all of its proper entitlements under the Contract in respect of Variations and indirect costs (Defence [90(a)]; and 3. Denial that it knew that McMahon was performing work outside the scope of the Services under the Contract and expected to be paid for those works (Defence [112 (a) and (b)]). | AARP objects to the production of this category of documents on the following grounds: • The request places an unreasonable burden on AARP, is disproportionate to the case and unfair in the circumstances. Moreover, the request would amount to a contravention of the obligation in s.37M of the Federal Court of Australia Act 1976 to conduct the proceeding in a way that is consistent with the overarching purpose. • The request is tantamount to a request for general or standard discovery of the project files. • The request for AARP daily records of plant and personnel on Site relevant to the “progress and performance of the Project” is a duplication of category 9 which requires “site diaries / daybooks or other documents … recording the progress of the Services”. • The request for documents “relevant to the costs incurred on the Project” is a duplication of category 10 which seeks documents “relevant to the assessment of the cost impact of the Variations and determination of what (if any) additional payment should be made to McMahon”. • The request for documents “relevant to Claims made by McMahon for performing work outside the Contract scope of works” is vague and requires AARP to form an opinion as to the meaning to be given to work outside the “Contract scope of work”. Note that the term Variations is not used – accordingly, AARP is at a loss to understand what is being requested of it. • The request for all documents “relevant to payment of McMahon’s entitlements under the Contract in respect of the Variations and indirect costs” is a duplication of categories 7 and 8. | McMahon presses its request in relation to sub-paragraphs 1-4. | The respondent is to discover all documents within the description claimed for the period 23 August 2016-31 August 2018 in: 1. Sub- category 1; 2. Sub- category 2; 3. Sub- category 3 4. Sub- category 4, limited to Variations and to the extent work alleged not to be the subject of a Variation Order, consequent upon a Change to Services (as defined in [3.2] of the statement of claim); 5. Sub- category 5. |
18. | All programmes prepared and updated by AARP with respect to the Contract Scope of Works for the Project (with the exception of those disclosed by McMahon) including:- 1. All programmes, whether formal or informal: a. prepared prior to or at the time of tender for the Contract Services or Scope of Works; b. prepared and updated during the course of the Project including all look ahead programmes; and 2. Programmes that record actual progress up to the date of Project completion; in all formats as they exist, whether native or hard copy, and including production of all baseline status updates which show tracking. | Defence [114(c)]; [114(d)] | Any programmes prepared prior to or at the time of tender are directly relevant to the allegation that McMahon underestimated the period of time required to complete the Services (Defence [114(d)]). All programmes and status updates prepared during the Project are directly relevant to cause and subsequent impact of delay events (Defence [114(c)]). | AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
19. | All tenders submitted for performance of the Contract Services for the Project (with the exception of the McMahon tender). | Defence [114(d)] | AARP alleges that McMahon underestimated the equipment requirements to perform the demolition work and consequently underestimated the tender price for the Services. These documents are directly relevant and material to establishing that McMahon prepared a reasonable estimate for the cost of the Services. | Subject to agreement being reached in relation to appropriate confidentiality protocols and limitations on the persons who have access to these documents, AARP will produce documents in its possession, custody or control which respond to this category. The documents sought in this category contain commercial in confidence materials of direct competitors of McMahon. | Noting that the Harman Rule applies, McMahon requested that AARP supply proposed terms of Confidentiality Agreement AARP seeks to be signed by lay witnesses. | |
20. | All documents and records including internal correspondence and communications such as emails, internal memorandums, file notes, meeting notes, meeting minutes or records of meetings evidencing AARP’s assessment of McMahon’s tender dated 8 January 2016 and AARP’s decision to enter into the Contract with McMahon. | Defence [114(d)] | AARP alleges that McMahon underestimated the equipment requirements to perform the demolition work and consequently underestimated the tender price for the Services. These documents are directly relevant and material to establishing that McMahon prepared a reasonable estimate for the cost of the Services. | AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
21. | All budget estimates for the Contract Scope of Works prepared by or on behalf of AARP. | Defence [114(d)] | AARP alleges that McMahon underestimated the equipment requirements to perform the demolition work and consequently underestimated the tender price for the Services. These documents are directly relevant and material to establishing that McMahon prepared a reasonable estimate for the cost of the Services. | Subject to this category being limited in time to “prior to the date of the Contract” or similar, AARP will produce documents in its possession, custody or control which respond to this category. | Agreed | |
Respondent’s Redfern Schedule - Annexure 2
No. | Document or category of document | SOC ref | Relevance | Response/objection to document or category response | Reply to objection to document request | Court’s Decision |
Methodology | ||||||
1. | All internal documents created by McMahon prior to the issue of its Tender Proposal relating to McMahon’s analysis of the RFT and its understanding of the scope of work to be performed, including notes taken and internal communications inclusive of Board papers and Board committee papers: • arising out of the 130 hours (including 60 hours of site visits) alleged at para 26.2; • relating to the detailed risk assessments alleged at para 26.2; • relating to the development of McMahon’s work methodologies to mitigate the delivery of the project using a ‘minimal risk” approach alleged at para 26.2. | 26 | These documents are directed to McMahon’s understanding of the scope of the work and to the methodology formulated by it to undertake the Services. Consequently, they are material to AARP’s defences that McMahon: • under estimated the time required to perform the Services (see the further particulars provided by letter dated 8 June 2021 from Russell Kennedy to McMahon (FURTHER PARTICULARS) reproduced at [6] of McMahon Services Australia Pty Ltd v Howmet Systems Australia Pty Ltd [2022] FCA 31); and • under estimated the equipment requirements to perform the Services (see para 114(d) of the DEFENCE). | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, oppressive and constitutes fishing, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings subject to the qualification that the Applicant does not object to disclosure of: • documents relating to the development of McMahon’s work methodology for the removal of asbestos; and • documents relating to scheduling or planning of the works. | The Respondent maintains this request. | The applicant is to discover documents relating to: 1. The formulation of its work method statement for carrying out the Services (as defined in [3.14] of the statement of claim); 2. Its schedule and/or planning and/or programming for the Services (as defined in [3.14] of the statement of claim) prepared for tender purposes; 3. It’s assessment of the scope of the Services (as defined in [3.14] of the statement of claim), the preparation of its detailed risk assessment and work method statement. |
2. | All internal documents created by McMahon prior to the issue of its Tender Proposal (including notes, risk assessments, contingency plans and internal communications inclusive of Board papers and Board committee papers) relating to McMahon’s assessment of the extent of asbestos and hazardous materials to be encountered on the Site, including the alleged assumptions (or allegation that McMahon anticipated) that: • the Asbestos Register completely and accurately identified all asbestos and hazardous materials that may be encountered on the site alleged at para 29.1; and • the hazardous materials in the Asbestos Register could be removed primarily by mechanical demolition alleged at para 29.2. | 29 | The allegation that McMahon assumed that the Asbestos Register constituted a comprehensive identification of all asbestos and hazardous materials to be encountered on the site is contested (see para 29© of the DEFENCE). The documents are material to whether the assumption was made or, if it was made, whether it ought reasonably to have been made. The suitability of McMahon’s chosen methodology of mechanical demolition for the project is also in issue. Interim details of the failures of McMahon’s mechanical methodology have been provided in the FURTHER PARTICULARS. Further, at para 30 of the Defence AARP denies that the resources set out in the Tender Proposal were adequate and, at para 114(d) of the DEFENCE, AARP alleges that McMahon under estimated the equipment requirements to perform the demolition work. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
3. | All internal documents created by McMahon prior to the issue of its Tender Proposal (including reviews, notes, assessments and internal communications inclusive of Board papers and Board committee papers) concerning Addendum No. 1 to the RFT issued on 16 December 2015 by AARP. | 27 | This request is material to whether McMahon was put on notice of the potential for additional asbestos (in addition to that identified in the Asbestos Register) to be encountered on the Site or whether Addendum No. 1 concerned a discrete area of the Site only (see para 27 of the DEFENCE). | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, and oppressive (insofar as the request relates to internal documents created in response to the whole of Addendum No.1), and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings subject to the qualification that the Applicant does not object to disclosure of: • documents concerning the potential for additional asbestos (in addition to that identified in the Asbestos Register) to be encountered on the Site in relation to Addendum No. 1 | The Respondent accepts the limitation of this category as set out in the Applicant’s Response. | Not applicable |
4. | All internal documents created by McMahon prior to the award of the Contract (including notes, risk assessments and internal communications inclusive of Board papers and Board committee papers) relating to McMahon’s assessment of the extent of asbestos and hazardous materials to be encountered on the Site, including its assumptions that: • the Asbestos Register completely and accurately identified all asbestos and hazardous materials that may be encountered on the site; and • the hazardous materials in the Asbestos Register could be removed primarily by mechanical demolition. | 29 | The allegation that McMahon assumed that the Asbestos Register constituted a comprehensive identification of all asbestos and hazardous materials to be encountered on the site is contested (see para 29© of the DEFENCE). The documents are material to whether the assumption was made or, if it was made, whether it ought reasonably to have been made. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
5. | All documents relating to the failures, breakdowns and maintenance of its specialised demolition excavators being the high reach PC1250 and the regular PC1250 and Genesis shear (Specialised Demolition Equipment) during the periods in which they were on site. Such documents to include all communications, reports and invoices with entities which repaired and/or maintained those machines, including Pirtek, Komatsu and Genesis. | 114.3, 114.4 | These documents are relevant to AARP’s contention that McMahon under estimated the equipment requirements to perform the demolition work (see paragraph 114(d) of the DEFENCE). They are also material to the reasons for the frequent failures of the specialised demolition excavators and the change of methodology (see the FURTHER PARTICULARS). | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
6. | All documents (including technical information from the suppliers or manufacturers of that equipment) in the possession, custody or control of McMahon concerning the performance capabilities of the Specialised Demolition Equipment. | 30.1.3 | McMahon’s allegation that the resources set out in the Tender Proposal (which included the Specialised Demolition Equipment) were sufficient is contested (see para 30 and 114(d) of the DEFENCE). AARP maintains that McMahon under-estimated the equipment requirements to perform the demolition work. | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, and oppressive (insofar as the request includes performance capability of the machinery on unrelated projects), and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings subject to the qualification that the Applicant does not object to disclosure of: • information from the suppliers or manufacturers in McMahon’s possession, custody or control concerning the performance capabilities of the Specialised Demolition Equipment. | The Respondent maintains this request. | The applicant is to discover: 1. All documents from the suppliers and/or manufacturers of the specialised demolition equipment used on the Project (as defined in [3.8] of the statement of claim) concerning the Performance Capabilities of such Specialised Demolition Equipment; 2. All documents produced or used by the applicant concerning the Performance Capabilities of the Specialised Demolition Equipment in connection with the preparation of its tender for, and performance of, the Services (as defined in [3.14] of the statement of claim) . |
7. | All internal documents: • concerning the uses to which the Specialised Demolition Equipment were intended to be put during the periods in which they were on site as at the date on which the Contract was awarded; • concerning mechanical difficulties and failures encountered with the Specialised Demolition Equipment; • in relation to the decision to remove the regular PC1250 and Genesis shear in February 2017; and • in relation to the decision to remove the high reach PC1250 in September 2016. Such documents also to include all versions of the Project Risk and Assessment Register. | 114.3, 114.4 REPLY 15b, 16civ | These documents are relevant to AARP’s defence that McMahon under estimated the equipment requirements to perform the demolition work (see paragraph 114(d) of the DEFENCE) and the failures of the Specialised Demolition Equipment which resulted in a change of methodology (see the FURTHER PARTICULARS). It should also be noted that paras 15b and 16civ of McMahon’s REPLY alleges that “it was reasonable to assume that any additional asbestos on the Site not recorded in the Asbestos Register (if any) would not be so significant as to require a change of methodology”. While there is no express concession that a change of methodology occurred the logical inference of the identified paras of the REPLY is that McMahon contends that a change of methodology occurred as a consequence of unidentified asbestos being encountered. The Project Risk Assessment Register (as the name suggests) identifies risks and was reviewed and updated if methodology was altered. These registers are relevant to explain the reasons for any change to methodology. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Asbestos Register and Hazardous Materials Audit | ||||||
8. | The consultancy agreement, purchase order or other documents concerning Prensa’s engagement by McMahon in relation to the project (in particular the scope of works to be performed by Prensa) and all subsequent correspondence, instructions and/or directions passing between those parties in relation to the preparation of the Hazardous Materials Audit as required by the first bullet point of Appendix F to the Contract. | 29, 33 | McMahon alleges that it assumed that the Asbestos Register (provided as part of the RFT) completely and accurately identified all asbestos and hazardous materials on Site (see para 29.1 of the SOC). McMahon engaged Prensa to prepare the Hazardous Materials Audit required by Appendix F of the Contract. AARP maintains that the documents requested are relevant to the truth or otherwise of the assumption set out in para 29.1 which McMahon asserts it relied upon. | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, oppressive and constitutes fishing, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings. | The Applicant has accepted the revised category of documents proposed by the Respondent which is limited to the consultancy agreement between McMahon and Prensa. | Not applicable |
Programs, delays and documents relevant to the dates on which work was carried out | ||||||
9. | All programs (and updated programs) provided by McMahon to AARP from the date of the Tender Proposal to October 2017 in native format, including: • the program described as the McMahon Programme (in para 29 of the SOC) created as part of the Tender Proposal; • the program attached to the Contract as file CW2093665 Attachment 4 – Schedule; • the weekly or fortnightly updates of the program provided by McMahon; and the programs attached to the Aquenta Report dated 9 October 2017 (commissioned by McMahon) as Appendices 4, 5, 6, 7, 9, 10, 15, 16, 17, 18, 19, 20, 21 22, 23, 24, 25 and 26 to that document which was previously provided to AARP. | 29, 33.1 | The programs provided by McMahon to AARP during the course of the project were not given to AARP in electronic or native format (they were received in pdf format only). The programs are relevant and necessary to assist the delay expert (to be engaged by AARP) to analyse and/or prepare an as built program and address the extent to which: • McMahon did not follow the contract program and its updates; • McMahon under estimated the time to perform the Services; and • there was no proper sequence adopted by McMahon. See [15] of McMahon Services Australia Pty Ltd v Howmet Systems Australia Pty Ltd [2022] FCA 31. Also see the FURTHER PARTICULARS – which alleges, among other things, that McMahon failed to follow the contract program from the outset. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
10. | All site diaries or centralised documents kept by McMahon which record the progress of the works. | 114 | These documents are relevant to factual questions concerning the dates that work on site actually occurred and will also be required for the purposes of assisting AARP’s delay expert to analyse the delays alleged by McMahon and/or prepare an as built program. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
11. | All signed daily work permits, including all: • General Work Permits; • Hot Work Permits; • Working at Height Permits; and • Crane Lift Permits. | 114 | These documents are relevant to factual questions concerning the dates that work on site actually occurred and will also be required for the purposes of assisting AARP’s delay expert to analyse the delays alleged by McMahon and/or prepare an as built program. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
12. | The following work activity categories of documents: All signed Safe Work Method Statements issued in respect of the Services. All signed Job Safety Analyses (referred to as JSAs) issued in respect of the Services. Weekly Toolbox Meeting Minutes (recorded in McMahon Form F627). Daily Pre-Start Meeting Minutes (recorded in McMahon Form F235). | 114 | These documents summarise the work to be performed, when and how the work crews performed various activities. The documents are relevant to factual questions concerning the dates that work on site actually occurred and will also be required for the purposes of assisting AARP’s delay expert to analyse the delays alleged by McMahon and/or prepare an as built program. | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, oppressive and constitutes fishing, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings subject to the qualification that the Applicant does not object to disclosure of: • Weekly Toolbox Meeting Minutes (recorded in McMahon Form F627); and • Daily Pre-Start Meeting Minutes (recorded in McMahon Form F235). | The Respondent maintains this request. | The applicant is to discover: 1. Weekly Toolbox Meeting Minutes (recorded in McMahon Form F627); 2. Daily Pre-Start Meeting Minutes (recorded in McMahon Form F235). There is no basis for discovery of the remaining documents sought |
13. | All internal reporting and internal recording (generated by McMahon site personnel at Yennora) of delays encountered on site during the course of the project including documents reporting on delays and disruptions: • for internal purposes; and • to McMahon’s head office or management, | 114 | AARP contends that McMahon: • mismanaged the planning, timing and sequencing of the Services; and • utilised demolition equipment that was inadequate or not fit for purposes, (see para 114 of the DEFENCE). | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, oppressive and constitutes fishing, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings subject to the qualification that the Applicant does not object to disclosure of: • documents reporting on or recording delays and disruptions arising out of mismanagement of the planning, timing and sequencing of the Services; and • documents reporting on or recording delays and disruptions arising out of demolition equipment that was inadequate or not fit for purposes. | The Respondent maintains this request. | The applicant is to discover: 1. All documents reporting on or recording delays and disruption to the planning and/or programming and/or sequencing of the Services (as defined in [3.14] of the statement of claim).
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14. | All documents relevant to the application for and obtaining of the permit from NSW WorkCover (or other relevant agency) required to begin asbestos removal work including the NSW WorkCover Permit itself. | 114 | This permit was not obtained until the end of May 2016 notwithstanding that McMahon had been on site since early April 2016. The failure to obtain the permit forms part of the defences concerning its mismanagement of the Services. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
February 2017 Meeting | ||||||
15. | All documents including notes, minutes and communications (internal documents inclusive of Board papers and Board committee papers and external documents) in relation to the meeting that occurred on 13 February 2017. | 63 - 69, 71, 72.2, 72.3.3 | The outcome and matters discussed during the meeting on 13 February 2017 are contested. The requested documents are relevant to what transpired at the meeting and the effect of any agreement or understanding (if any) reached at that meeting. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Project close out documentation | ||||||
16. | All documents said to constitute the project close out documentation and documents relevant to the transfer and delivery of those documents to AARP. | 78 | There is a live question as to whether McMahon provided the project close out documentation and is therefore entitled to recover the relevant milestone payment for this work which is claimed by McMahon in this proceeding. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
The Tender Sum | ||||||
17. | All documents relating to the amounts included or allowances made in the tender sum offered by McMahon. Such documents to include the following categories: | 30 | McMahon advances what it describes as a “modified total costs claim” (see paragraph 2 of McMahon’s submissions dated 25 June 2021). As such, McMahon has put in issue the reasonableness of its tender offer. See, for example, the Hon. Justice Byrne “Total costs and global claims” (1995) 11 BCL 297 at 404. These documents are relevant to McMahon’s assertion at para 30 of the SOC that the Tender Proposal was sufficiently priced with the resources set out in the Tender Proposal being sufficient to meet the duration for performance as set out in the McMahon Programme. AARP wishes to review the reasonableness of the tender offer. AARP has also previously signalled the possibility that it will enlist the assistance of a “quantum” expert in relation to the make-up (and adequacy) of the tender offer to test this assertion. Consequently, in order to adequately instruct the quantum expert it is necessary to obtain documents relating to the composition of the tender offer. See McMahon Services Australia Pty Ltd v Howmet Systems Australia Pty Ltd [2022] FCA 31 at [16]. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of internal and labour hire costs. | 57.1, 117 | ||||
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of subcontractor costs. | 121 | ||||
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of consultant costs. | 124 | ||||
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of airfare and accommodation costs. | 128 | ||||
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of plant costs; | 132, 133 | ||||
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of material and tool costs. | 137 | ||||
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of waste disposal costs. | 140, 141 | ||||
| All documents relating to McMahon’s estimates or calculations allowed in the Tender Proposal in respect of the net return on the Project. | 30.1.4 | ||||
Internal and labour hire costs | ||||||
18. | Payroll records of the employees/internal labour resources named in Annexure 5. | 119, 156 Annexure 5 | This Item and Items 19 and 20 relate to costs actually incurred by McMahon in relation to internal and labour hire companies. As a modified total cost claim, McMahon has put in issue the reasonableness of the actual costs incurred. See, for example, the Hon. Justice Byrne “Total costs and global claims” (1995) 11 BCL 297 at 404. McMahon alleges that it reasonably incurred $5,093,608.39 in respect of internal labour costs which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant objects to disclosing the documents requested on the basis that the request is too broad and, oppressive, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings, subject to the qualification that the Applicant does not object to disclosure of: • documents relevant to payments made to the employees/internal labour resources named in Annexure 5 for the hours worked on the Project as set out in Annexure 5. | The Respondent accepts the limitation of this category as set out in the Applicant’s Response. | Not applicable |
19. | All invoices referred to in Annexure 5 in respect of labour hire costs amounting to $2,916,178.61. | 119, 156 Annexure 5 | McMahon alleges that it reasonably incurred $2,916,178.61 in respect of labour hire costs which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
20. | Copy labour hire agreements between McMahon and each entity listed in Annexure 5 in respect of labour hire costs. | 119 Annexure 5 | At Annexure 5, McMahon lists invoices from various labour hire companies. The agreements are relevant to the allegation that McMahon incurred these expenses and also relevant the reasonableness of the amounts alleged to have been incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Subcontractor costs | ||||||
21. | All invoices referred to in Annexure 7 in respect of subcontractor costs amounting to $1,997,782.37. | 123, 156 Annexure 7 | This Item and Item 22 relate to costs actually incurred by McMahon in relation to subcontractors. AARP repeats the comments in the first para of item 18 concerning the reasonableness of the costs incurred. McMahon alleges that it reasonably incurred $1,997,782.37 in respect of subcontractor costs which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
22. | Copy subcontracts, purchase orders or agreements between McMahon and each entity listed in Annexure 7 in respect of subcontractor costs. | 123 Annexure 7 | At Annexure 7 of the SOC, McMahon lists invoices from various subcontractor entities. The agreements are relevant to the allegation that McMahon incurred these expenses and also relevant the reasonableness of the amounts alleged to have been incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Consultant costs | ||||||
23. | All invoices referred to in Annexure 8 in respect of consultant costs amounting to $85,946.60. | 126, 156 Annexure 8 | This Item and Item 24 relate to costs actually incurred by McMahon in relation to consultants’ costs. AARP repeats the comments in the first para of item 18 concerning the reasonableness of the costs incurred. McMahon alleges that it reasonably incurred $85,946.60 in respect of consultant costs which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
24. | Copy subcontracts, purchase orders or agreements between McMahon and each entity listed in Annexure 8 in respect of consultant costs. | 126 Annexure 8 | At Annexure 8, McMahon lists invoices from various entities. The agreements are relevant to the allegation that McMahon incurred these expenses and also relevant the reasonableness of the amounts alleged to have been incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Airfare and accommodation costs | ||||||
25. | All invoices referred to in Annexure 9 in respect of airfares and accommodation costs amounting to $1,815,469.40. | 130, 156 Annexure 9 | This Item relates to costs actually incurred by McMahon in relation to airfare and accommodation costs. AARP repeats the comments in the first para of item 18 concerning the reasonableness of the costs incurred. McMahon alleges that it reasonably incurred airfares and accommodation costs amounting to $1,815,469.40 which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Plant costs | ||||||
26. | In respect of each item of internal plant hire referred to in Annexure 11: • Financial information including depreciation schedules or other documentation used to establish the hire charges in respect of the relevant periods; • documentary proof of ownership by McMahon. | 132, 135 Annexure 11 | This Item and Items 27 and 28 relate to costs actually incurred by McMahon in relation to plant. AARP repeats the comments in the first para of item 18 concerning the reasonableness of the costs incurred. McMahon alleges that it reasonably incurred internal plant hire charges of $3,940,060.64 in respect of internal plant costs which it seeks to claim from AARP. It is unclear how this sum has been calculated. The requested information is relevant to the quantum of the total cost claim and McMahon’s entitlement to claim these sums. | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, oppressive and constitutes fishing, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings. | The Respondent maintains this request. | The applicant is to discover: 1. All documents, including (without limitation) any depreciation schedules and any agreement or arrangement between the applicant and other entities related to the applicant and used by it to calculate the hire charges for internal plant hire particularised in annexure 11 to the statement of claim. |
27. | All invoices referred to in Annexure 11 in respect of: • External plant costs amounting to $1,378,639.36; • Fuel costs amounting to $440,406.96; • Transport costs amounting to $185,117.11. | 133, 135, 156 Annexure 11 | McMahon alleges that it reasonably incurred these amounts in respect of material and tool costs which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
28. | Copy subcontracts, purchase orders or agreements between McMahon and each entity listed in Annexure 12 in respect of: • External plant costs; • Fuel costs; and • Transport costs. | 133, 135 Annexure 11 | At Annexure 12 of the SOC, McMahon lists invoices from various entities. The agreements are relevant to the allegation that McMahon incurred these expenses and also relevant the reasonableness of the amounts alleged to have been incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Material and tool costs | ||||||
29. | All invoices referred to in Annexure 12 in respect of: • Material costs amounting to $979,706.09; and • Tools amounting to $220,744.03. | 139, 156 Annexure 12 | This Item and Item 30 relate to costs actually incurred by McMahon in relation to material and tool costs. AARP repeats the comments in the first para of item 18 concerning the reasonableness of the costs incurred. McMahon alleges that it reasonably incurred $1,200,450.12 in respect of material and tool costs which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
30. | Copy subcontracts, purchase orders or agreements between McMahon and each entity listed in Annexure 12 in respect of: • Material costs; and • Tool costs. | 39 Annexure 12 | At Annexure 12 of the SOC, McMahon lists invoices from various supplier entities. The agreements are relevant to the allegation that McMahon incurred these expenses and also relevant the reasonableness of the amounts alleged to have been incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Waste disposal costs | ||||||
31. | All invoices referred to in Annexure 13 in respect of waste disposal costs amounting to $650,054.69. | 143, 156 Annexure 13 | This Item and Item 32 relate to costs actually incurred by McMahon in relation to waste disposal costs. AARP repeats the comments in the first para of item 18 concerning the reasonableness of the costs incurred. McMahon alleges that it reasonably incurred $650,054.69 in respect of waste disposal costs which it seeks to recover from AARP. The requested information is relevant to the reasonableness of the actual costs incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
32. | Copy subcontracts, purchase orders or agreements between McMahon and each entity listed in Annexure 13 in respect of waste disposal costs. | 143 Annexure 13 | At Annexure 13 of the SOC, McMahon lists invoices from various entities. The agreements are relevant to the allegation that McMahon incurred these expenses and also relevant the reasonableness of the amounts alleged to have been incurred. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
Profit | ||||||
33. | Financial records of McMahon including annual returns and profit and loss statements for the years ending 30 June 2016, 2017 and 2018. | 152 | McMahon alleges that it is entitled to a reasonable profit margin claimed at 10% of the actual cost of the works. These documents are sought to determine the profit earned by McMahon during the relevant period. The requested information is relevant to the quantum of the total cost claim. | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, oppressive and constitutes fishing, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings subject to the qualification that the Applicant does not object to disclosure of: • annual returns for the years ending 30 June 2016, 2017 and 2018; and • profit and loss statements for the years ending 30 June 2016, 2017 and 2018. | The Respondent accepts the limitation of this category as set out in the Applicant’s Response. | Not applicable |
Scrap metal | ||||||
34. | All documents including receipts and invoices relating to the sale of scrap metal by McMahon. | 153, 154 Annexure 15 | The total cost claim includes a deduction of $846,211.20 being the difference between the amount McMahon alleges that it sold scrap metal recovered from the Project ($2,220,334.52) and the amount paid to AARP ($1,374,123.32). AARP wishes to verify the amount of the deduction. | The Applicant objects to disclosing the documents requested on the basis that the request is too broad, oppressive and constitutes fishing, and the documents are otherwise not directly relevant to issues in dispute as raised on the pleadings subject to the qualification that the Applicant does not object to disclosure of: • receipts for the sale of scrap metal by McMahon; and • invoices for the sale of scrap metal by McMahon. | The Respondent accepts the limitation of this category as set out in the Applicant’s Response. | Not applicable |
Variation Claims | ||||||
35. | The following Purchase Orders: • VO14: Purchase Order 1092525 • VO15: Purchase Order 1092531 • VO16c: Purchase Order 1092516 • VO85a: Purchase Order 1092752 • VO108: Purchase Order 1092775 • VO110: Purchase Order 1092782 • VO124: Purchase Order 1092817 • VO130: Purchase Order 1092841 • VO132: Purchase Order 1092844 • VO133: Purchase Order 1092845 • VO136: Purchase Order 1092825 • VO138: Purchase Order 1092448 | Annexure 2 | These Purchase Orders are referenced in Annexure 2 to the SOC, however, AARP has been unable to locate a copy of these documents. | The Applicant does not object to the requested disclosure. | No reply – category accepted by the Applicant. | Not applicable |
