Clough has moved to expedite its mammoth $150 million claim against Rio Tinto’s Hamersley Iron after accusing the mining giant of simply kicking the can down the road.
Clough has moved to expedite its mammoth $150 million claim against Rio Tinto’s Hamersley Iron after accusing the mining giant's well-resourced legal team of simply kicking the can down the road.
It has been seven weeks since Clough and Acciona’s Coleman Rail outlined its claims in a 531-page Supreme Court writ, which relate to a $139 million contract the trio signed in 2019 for the construction of a 99-kilometre rail embankment at the $3.5 billion Gudai-Darri iron ore mine.
But Clough and Coleman Rail claim they were “misled”, with significant changes to the scope of the works sending indirect costs skyrocketing by more than $25 million and causing major delays.
The pair are now chasing Hamersley for a $106 million termination payment and $44 million in damages, as well as pursuing allegations the miner exposed staff to “unconscionable” health risks by understating the extent of asbestos contamination at a portion of the site within the Wittenoom Asbestos Management Area.
During a directions hearing in the Supreme Court this morning, Clough’s lawyer, barrister John Gurr, filed a minute of proposed orders seeking the lodgment of a defence.
Mr Gurr expressed frustration at the handling of the case by the well-resourced defence team, highlighting that the statement of claim had been sitting with them for seven weeks, but that the actual complaint long preceded that.
He told the court that in that time the defence team had indicated issues with as little as 20 statements within the writ, which contains more than 1,200 paragraphs.
“Given the resources of the defendant, we would have expected a schedule by now,” he said.
“This is a team with sufficient resources to properly review the pleadings and identify the parts of the claim it wishes to attack - let’s just get on with it.
“If they bring an application to strike out parts of the statement of claim, they should bring it on.
“We’re sitting here having received no request and all we’ve received is a suggestion that the matter be kicked down the road for a strategic conference - but that can’t proceed in a vacuum.”
But Hamersley Iron’s defence team, led by Kanaga Dharmananda, detailed the merits of a conferral to discuss the particulars of the case, explaining that it would take time to comprehend the essence of the claim, track down the necessary witnesses and any expert evidence required.
“While the claims are not new, they are certainly new in the form we have received them - more than 500 pages,” he told the court.
“It’s a matter where even to comprehend the essence of the claim requires some time and it’s not unusual in a large construction case to take several months.
“We would submit that our capacity to review pleadings has been inhibited and we still don’t have the various attachments in order.
“We didn’t want to do it piecemeal, we wanted to do it comprehensively and we also want to know whether they are running a global claim or not.
“That, we say, will also enable for the early identification of subject matters of expert evidence and what the experts might need.
“It is true that the amount in issue is not as much as in other cases, including Raine Square and Perth Children's Hospital, but it is still a heavy construction case
“We are not proposing to kick the can down the road, that is not useful.”
As part of orders delivered by Justice Gail Ann Archer today, Hamersley Iron’s lawyers will have a fortnight to pull together a complete list of alleged deficiencies in the claim before conferral with Clough’s legal team and a second directions hearing on June 20.
Under the orders, Hamersley will need to put any desire to strike out parts of the claim or an extension of time in writing before filing a defence before June 22, with a potential hearing flagged for later this year.
In justifying her decision, Justice Archer said she wanted to give the defendants an opportunity to get their ducks in a row.
She also made a point of urging the two parties to confer face-to-face or over the phone after the teams’ solicitors were allegedly involved in a fiery exchange, suggesting Mr Gurr invite his staff to “tone down” their correspondence.
The matter is due to return to court on June 20.
