Case Note – Wickham Point Development Pty Ltd v Commonwealth of Australia & Ors (No 2) [2018] NTSC 5

Litigation lawyers, and students of civil procedure, will find useful guidance in relation to ‘PD6’ in the recent decision of Northern Territory Supreme Court decision in Wickham Point Development Pty Ltd v Commonwealth of Australia & Ors (decided 26 July 2018 by Associate Judge Luppino).

Supreme Court of the Northern Territory ‘Practice Direction No 6 of 2009 – Trial Civil Procedure Reforms’, or just ‘PD6’ as it is known in the trade, was introduced almost 10 years ago, in June 2009.

To address ‘that traditional civil litigation takes too long and is too expensive’ and noting ‘delays and inefficiencies impose substantial avoidable costs and other pressures on litigants’, it was thought, at the time, to introduce a ‘pre-action’ procedure, where parties would advise each other of the details of their claim; and defence, supported by ‘essential documents’; and trying some alternate means of resolving the issue (eg mediation), before actually starting legal action in Court.

An important, and central step of any litigation in Court is ‘discovery of documents’ (the search, identification, listing; and exchange of relevant documents).  This can, and often does, involve considerable time and cost; but it is important to the proper resolution of any case.

One of the benefits of the PD6 procedure was seen to reduce or eliminate the need for discovery (in the event legal action is commenced), because the parties would have exchanged relevant documents during the PD6 phase.

As the Court discussed in the Wickham Point Developments case, ‘PD6 disclosure is intended to ensure that each party discloses to the other the documents required to establish each element of the case of each party as set out in their PD6 letters.  In routine cases documents which are disclosable pursuant to PD6 would likely be the majority of documents which would otherwise be discoverable.  What is an essential document or a document which might significantly impair a party’s own case (hereinafter collectively referred to as “disclosable documents”) is not defined in PD6.  However I think it is clear from PD6 and the Explanatory Statement that PD6 disclosure is intended to result in the production of less documents compared to full general discovery.’

The parties attended to the PD6 procedure; but it looks like very few documents were exchanged between them.  Eventually, they ended up in Court arguing over whether ‘full’ discovery had to be given.

The Court thought that each side’s disclosure during the PD6 exchange was insufficient; and, in the circumstances of this case, the Court decided that, given the complexity of the matter, everyone was probably better off attending to discovery, in the full, traditional sense.

This litigation is likely to involve as substantial number of documents; and the parties indicated they would attend to that by ‘electronic discovery.’   The case is based ‘on alleged (oral) representations’ that Australian government would occupy the former detention centre at Wickham Point, near Darwin, Northern Territory Australia owned by Wickham Point Development Pty Ltd the ‘for at least 10 years.’

The Plaintiff:

‘alleges that it expended sums to effect works on the premises to accommodate the Defendant’s intended use. The Plaintiff claims that it would not have effected those works without the representations. The Defendant vacated the premises in a little over five years.’
‘claims, as damages, lost rent at the rate of approximately $1.6 million per calendar month for the approximate 60 calendar months balance of the term. The next most significant part of the claim is in respect of breaches by the Defendant of its repair obligations. There are also claims for rent and outgoings which the Plaintiff claims the Defendant failed to pay as required.’
To get an idea of the nature of discovery, the Court said that to ‘demonstrate the likely complexity of the case, the current Statement of claim, including the Schedule which sets out particulars in respect of the repair claim, is in excess of 600 pages. The Schedule contains almost 9,000 instances of breach.’

(Note: The information above is a note / summary of the case; and it is for general information and educational purposes only.  It is not, nor is intended to be, legal advice.)