Attwells v White

Supreme Court of NSW|2021-11-12|Before: Lonergan J, McCallum J, Adamson J

Judgment

On 29 October 2021 the plaintiff filed a notice of motion seeking orders that would have a direct effect on the five day hearing of issues between these parties listed to commence on 22 November 2021.
The proceedings concern allegations that the defendants, a solicitor and barrister, were negligent in advice that they gave between 2012 and 2015 in relation to proceedings against Jackson Lalic Lawyers.
The notice of motion seems to have been prompted by a realisation that the plaintiff was not properly prepared to prove his "costs as damages" claim which is part of the loss he said was caused to him by the alleged negligence of the defendants.
Orders were sought first, for leave to rely upon the affidavits and report of a costs consultant, Ms Davitt, dated October and November 2021, and second, "that the part of the plaintiff's claim in respect of quantum constituted by professional costs and disbursements incurred by the plaintiff in the circumstances brought about by the defendants, be referred to a referee pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 20.14 and r 20.15".
On 11 November 2021 the notice of motion was amended to seek a third order that "the hearing on liability be split from the hearing on quantum of damages". This was presumably an application pursuant to UCPR r 28.2 and was in effect abandoned during argument.
I refused to make orders 2 and 3. Order 1 was the subject of agreement by counsel for the defendants who both took a pragmatic approach, reserving for later argument before the trial judge the question of admissibility of that late served material.

Background

The proceedings were commenced by Statement of Claim filed in the District Court on 18 December 2017.
After various case management and other hearings and directions, the proceedings were allocated a five day hearing on 24 December 2020, that hearing to commence on 22 November 2021. Associated proceedings between Mr White and Mr Attwells (the Fees Proceedings), had already been ordered by McCallum J to be heard concurrently with these proceedings.
As part of case management orders, the plaintiff was required to file and serve all of his evidence by 12 May 2020. He did not.
Issues were raised by the solicitors for the defendants in August 2020 about the unsatisfactory state of the plaintiff's evidentiary position.
On 27 November 2020, six months out of time, the plaintiff's solicitor served two further affidavits of the plaintiff Noel Attwells and an unsworn affidavit of Dr Lord.
On 20 November 2020 Adamson J made an order requiring the plaintiff to identify the affidavits to be relied upon at the substantive hearing within 21 days. This was not complied with and instead, the defendants were notified two months later on 18 February 2021. Ms Davitt was not mentioned.
It is common ground that the first mention of Ms Davitt's potential role in the proceedings was on 1 October 2021. Her affidavits and report were served on 15 October 2021 and 1 November 2021.
As pointed out to the plaintiff's solicitors by the defendants' solicitors, to be permitted to rely on this material out of time, leave of the Court would need to be obtained. This prompted the October notice of motion.

The orders sought

It is common ground that no previous suggestion had been made to the defendants of either referral to a referee for assessment of damages or a "split hearing", prior to the service of the notices of motion.
The defendants both opposed the orders.
Counsel for the defendants argued, persuasively, that a reference out of the quantum of damages to a referee or costs assessor would result in significant costs being incurred in creating a kind of satellite litigation. That was not justified given first, the period for which the matter had been set down, (almost a year), second, the fact that the proceedings were commenced in 2017 and third, the proposed approach was not in keeping with ss 56 to 61 of the Civil Procedure Act 2005 (NSW) as it could not be just nor quick nor cheap to take that course.
The matter is listed 10 days away for the entire case to be heard. Referral out to a costs assessor would create further costs associated with clarifying which costs and why they should be referred out, and what principles are to be used, with then, potentially, further evidence needing to be adduced, all of which would be entirely disproportionate to the parameters of the claim.
In respect of the order for separate question, the Court's attention was drawn to the comments of the High Court in Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 at [436] per Callinan J: "[436] Care does need to be taken in deciding whether to conduct separate trials of different issues. It sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid. In tort cases in which damage is the gist of the action, it will generally be undesirable to accede to requests for them, or to order them, unless all parties accept that compensable damage has been sustained by the plaintiffs or applicants as the case may be." and Callinan J in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168]: "[168] … The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap".
Confining the hearing to the question of liability only serves to delay completion of the matter and would inevitably require the parties to incur more costs. That position would be contrary to the requirements of ss 56 to 61 of the Civil Procedure Act.
The solicitor for the plaintiff submitted in response that there had been delay on the part of the first defendant in providing certain information in the associated "Fees Proceedings" which was said to have a bearing on quantum and contributed to the delay in obtaining the cost assessor's report and affidavits. I do not accept that submission. That matter is separate and the complaint raised irrelevant.
It was argued by the solicitor for the plaintiff that somehow the defendants had an obligation to bring before the Court the fact that they would object to the late service of Ms Davitt's material. Clearly this is a mistaken view of the parties' obligations and responsibilities.
It was also submitted that if the defendants are successful on the question of liability, then there would be no need to argue the case on quantum of damages and the trial would be shortened. That may be right but if that does not occur, time is lost and preparation wasted and costs wasted.

Oral application for variation of the hearing date

When it became clear in exchange between the Court and the solicitor appearing for the plaintiff Mr Newell that the Court was reluctant to allow reliance on Ms Davitt's late material, Mr Newell made an oral application for vacation of the hearing date arguing, contrary to what he had previously stated that very morning at 10:00am, and on previous occasions when I case managed the matter, that the matter could not be dealt with in the five days allocated. Unsurprisingly this application was opposed.

Decision

The oral application for vacation of the hearing date was refused. The matter has been listed for almost a year. The proceedings commenced in 2017. This Court was assured on more than one occasion that the matter was ready for trial. The defendants are legal practitioners defending proceedings that allege that they were negligent in advice given between 2012 and 2015. They are entitled to have those issues determined as soon as practicable.
I formed the view that the application to vacate the hearing, much like the orders sought in the notice of motion and amended notice of motion, were an attempt to manipulate the Court to change the hearing date or change the manner in which the hearing would proceed, not because there was a genuinely held belief that the matter would take more than five days, or that liability and damages issues should be split, or that there should be a referral to a costs referee, but because the plaintiff wanted more time to prepare his under-prepared damages case.
UCPR rr 28.1 and 28.2 allows the Court to make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings. That "question" can include "any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of the parties or otherwise".
A summary of the principles to be applied was usefully set out by Hallen ASJ in Southwell v Bennett [2010] NSWSC 1372 at [15]: "a. The rule speaks of "questions" and not "issues" and does not differentiate between questions of fact, or law, or partly of fact and partly of law; b. The judicial determination of a "question" must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties; c. Whether such an order should be made is a matter for the Court's discretion, which discretion must be exercised judicially, but cannot otherwise be fettered; d. As a general rule, the discretionary power to order separate determination of a question should be approached with caution; e. In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s56) must be given effect; f. Generally, all questions of fact and law should be determined at the one time. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be 'just and convenient' for that order to be made; g. Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings; h. Factors that tend to support the making of an order, include that the separate determination of the question may: i. contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the proceedings; ii. contribute to the settlement of the litigation. i. Whilst the decision is ultimately one for the Court to determine, it will have regard to the attitude of the parties; j. It is a relevant consideration to weigh the time likely to be taken in the hearing of a separate question and the availability of hearing dates for that purpose, against the time and expense of a substantive hearing and the length of time likely to elapse before such a hearing will take place; k. Each case will have its own dynamics that dictate the relative importance of various factors to be considered in exercising the discretion conferred." (Citations omitted).
The order sought as articulated in the amended notice of motion is deficient in that it does not specify the question desired to be answered as opposed to generally referring to an issue. In reality to actually divorce for later determination questions of "damages" in a professional negligence proceeding, the first-determined question would need to be confined to "breach of duty of care" on the part of the defendants. This is because to establish liability in professional negligence, in addition to proof of breach of duty, causally relevant loss or damage must also be proved before liability can be established. Determining breach of duty of care, even if that was the question posed, does not take the plaintiff's claim very far.
As the principles set out in [29] make clear, whether to order a separate question determination is a matter for the Court's discretion and one I should approach with caution. I must always consider s 56 of the Civil Procedure Act and whether it is likely to bring about just, quick and cheap resolution of the real issues in the proceedings.
Obviously the general rule is that all questions of fact and law should be determined at one time. In my view that is even more so in professional negligence proceedings that involve inter related questions of liability and damage.
It is also worth noting that the issue was only raised when it must have become evident to the solicitors for the plaintiff that there may be difficulties in being permitted to rely on their very late damages evidence.
If it was truly the case that the plaintiff's solicitors thought a separate question determination was the proper way forward in order to progress the proceedings in a cost-effective fashion, that application could and should have been made years earlier, not in the weeks before the hearing date that had been fixed for 11 months.
Similar considerations apply to the proposed referral to a costs referee or assessor under UCPR r 20.14. Frankly the logistics of any referral to an assessor would be so labyrinthine, any benefits would be outweighed by the complexities of that process. Senior Counsel for the first defendant submitted as much and I accept that submission.
In terms of the first order sought in the amended notice of motion, I was minded to accept the arguments made by both counsel for the defendants that the costs consultant's affidavits and report are unforgivably late and lateness was not adequately explained, but I accept and embrace the practical approach they have both taken in withdrawing their opposition to leave to rely on those reports whilst maintaining their position in respect of available admissibility arguments which will be determined by the trial judge.
The fact that the defendants' counsel acceded to that arrangement does not in my view affect the reality that the plaintiff's application to this Court failed and significantly so. Accordingly, I ordered that the costs should follow the event.

Orders

The following orders were made on 12 November 2021: 1. I grant leave to the plaintiff to file in Court his Amended Notice of Motion dated 11 November 2021. 2. I grant leave to the plaintiff to rely on the affidavit of Chris Davitt sworn and filed on 21 October 2021 and the supplementary affidavit sworn by Chris Davitt dated 1 November 2021, subject to evidentiary objections. 3. I refuse order 2 sought in the Amended Notice of Motion which seeks a referral of the question of the quantum of damages (or that part of the plaintiff's claim in respect of quantum constituted by professional costs and disbursements incurred by the plaintiff in undoing circumstances brought about by the defendants) be referred to a Referee pursuant to Part 20 Rule 14 and 15 of the UCPR. 4. Order 3 of the motion is not pressed, and in any event I would refuse to split the hearing as proposed by Order 3. 5. The oral application made today by the plaintiff is refused. 6. In respect of the oral application made by the plaintiff for vacation of the hearing date, the applicant, Mr Attwells, is to pay the costs of the defendants in respect of that oral application. 7. The plaintiff is to pay the defendants' costs of the Notice of Motion filed on 29 October 2021 and the Amended Notice of Motion filed on 11 November 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 December 2021

Uniform Civil Procedures Rules 2005(NSW)

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