Blacktown City Council v Allen Jack + Cottier Architects Pty Ltd

In these proceedings the plaintiff, Blacktown City Council, sues the builder and the architect in relation to a tennis court constructed at Blacktown. The council alleges there are various defects in the tennis court for which the architect and the builder are responsible. The claim against the builder is currently stayed by reason of an arbitration agreement in the contract between the council and the builder. That arbitration is proceeding in the usual way.

The architect has cross-claimed against the first cross-defendant, ACOR Consultants Pty Ltd, who was the engineer engaged by the architect to produce design drawings for the tennis court.

The council has served all its evidence-in-chief, as has the architect. The claim against the builder is, as I say, stayed and directions have been made for the engineer to put his evidence on by February next year. Thus, the evidence is not complete.

In those circumstances and by Notice of Motion filed on 12 September 2023, the engineer seeks from the council disclosure of 38 categories of documents, all of which appear to relate to what are described as the “general notes” and the “concrete notes”, and a design drawing prepared by the engineer in relation to the tennis courts. Each of the 38 categories seeks from the council all documents recording the construction of the “tennis centre” in accordance with the requirements in those paragraphs of the engineer’s drawing.

There is no dispute that the engineer must show exceptional circumstances by reason of Practice Note SC Eq 11.

I am prepared to assume for today’s purposes that the council may well hold the documents sought, although the council has not, in response to the enquiry from the engineer, said whether or not this is so, and that the documents are relevant to the claim made against the engineer by the architect.

The difficulty I see with the application is that the documents are said to be necessary to enable the engineer’s expert to produce a report, the engineer being obliged to put all expert evidence on in accordance with the orders to which I have referred.

There are often cases in this list where a party seeking pre-evidence disclosure adduces evidence from a prospective expert who states that he or she needs the documents sought for an identified purpose and opines that it is likely that he or she might need to produce a second report were he or she obliged to produce a report in the first instance absent the documents sought.

There is no such evidence here.

The evidence that touches on the question of the stated likelihood that an expert would need the subject documents is contained in the following paragraphs from the affidavits sworn by Mr Jacques Jacobs, the solicitor for the engineer:

It can be seen that this evidence is given at a very high level. It is also evidently given in circumstances where no expert has yet been retained. Thus, no expert has stated why he or she would need the documents nor whether he or she could form an opinion as to whether the builder failed to construct the tennis courts in accordance with the design drawings without the documents.

In my opinion, this application fails for this reason at the threshold, and it should be dismissed with costs.