> Bent v Gough

> Bent v Gough - [1994] FCA 1504 - FCA 1994 case summary — Zoe

[7]

23. He was, in relation to the application heard on 27 July, in breach of his duty to his own client by failing to keep him informed of what was happening and by consenting, without instructions, to the costs order then made. He was also in breach of his duty to the Court in that he failed to move with the expedition required by the order of 30 June: he was six days late in having the particulars and the affidavit of documents prepared, completed by Mr. Bendeich and served and he achieved that only after Lynch and Co., acting reasonably, filed the application that was ultimately heard on 27 July. But however his breaches of duty are characterised, they did not cause the objectors to incur any useless costs. Although Lynch and Co. filed their application on 10 July, once they received on 13 July the outstanding particulars and affidavit of documents, they raised new issues, viz., the alleged insufficiency of those particulars and of that affidavit. They used their now-pending application to obtain orders designed to resolve those new issues (and the issue of inspection to which I have already referred). The objectors' counsel did not submit to me that Lynch and Co.'s criticisms of the affidavit of documents and the particulars were so plainly well- founded that it would have been hopeless for Mr. Bendeich to have resisted the making of further orders in those respects. He would not have done that, at any event in relation to the particulars, given Lynch and Co.'s later abandonment of their demand for that information. The making of this application on behalf of the objectors and its hearing on 27 July did not therefore cause them to incur useless costs: rather did they achieve, as a result, a new position in the litigation to their advantage. Moreover, they got their costs of that application from Mr. Bendeich and it is irrelevant, so far as the objectors' position is concerned, out of whose pocket - Mr. Hewlett's or Mr. Bendeich's - those costs were paid. They therefore have no entitlement to the order for further costs which they seek against Mr. Hewlett in respect of this application.

[9]

24. Having agreed, without reference to Mr. Bendeich, that the latter's affidavit of documents was so deficient that a fresh affidavit was required, Mr. Hewlett for a time did nothing to comply with the order of 27 July. Although the evidence is incomplete, it appears from Lynch and Co.'s letter of 1 September that Mr. Bendeich's fresh affidavit of documents which the order of 27 July required to be served by 10 August was still outstanding and that on 10 August Mr. Hewlett began to assert that, despite the order of 27 July to which he had consented on behalf of Mr. Bendeich, Mr. Bendeich's original affidavit served on 13 July was sufficient compliance with his client's discovery obligations. Lynch and Co. understandably would have none of this. On 1 September, 1992, they complained about the failure of Mr. Bendeich to provide the fresh affidavit of discovery required by that order and said they would file an application seeking enforcement of the order if that affidavit was not received by close of business that day. The affidavit was not received and on 2 September, Lynch and Co. filed the application that came before the Court on 14 September. On 9 September, Lynch and Co. wrote to record that the affidavit still had not been received notwithstanding the filing of the application and (having apparently inspected some of Bendeich's documents) reiterated their demand for an affidavit properly identifying various of the documents and rejected Mr. Hewlett's suggestion that they should interrogate to ascertain that information as a step which would be wasteful and inappropriate. On 10 September, Lynch and Co. wrote to advise Mr. Hewlett that they were abandoning their entitlement under the order of 27 July for the further particulars, but were persisting with their claim for a further affidavit of discovery. Mr. Hewlett replied the same day, enclosing Mr. Bendeich's new affidavit of documents (a month after the time fixed by the order of 27 July); he repeated his earlier assertion that adequate discovery had already been made and that if Lynch and Co. wanted to know the identity of the author of any document already discovered, Mr. Hewlett had Mr. Bendeich's instructions to inform Lynch and Co. of Mr. Bendeich's preparedness to do that. (This was false: Mr. Bendeich gave no such instructions, although Mr. Hewlett probably expected to have no difficulty in persuading Mr. Bendeich to do this, if the need arose.) He also suggested that the application brought by Lynch and Co. and due to come before the Court on 14 September should be adjourned to the Registry. Lynch and Co.'s response of 11 September was to maintain the complaint first made on 14 July as to the inadequacy of Mr. Bendeich's fresh affidavit of documents in failing properly to describe the documents in respect of which privilege was claimed; they said that unless this deficiency was remedied, "our client intends to persist with its notice of motion (filed 2 September) in this regard." There apparently was a discussion between Mr. Lynch and Mr. Hewlett on 11 September which led to Mr. Lynch, under cover of his facsimile of that same date, forwarding to Mr. Hewlett a proposed consent order to be put before the Court on 14 September. Lynch and Co. took up Mr. Hewlett's suggestions and included in this an order that the objectors have leave to interrogate Mr. Bendeich. It appears that Mr. Hewlett advised Lynch and Co. that Mr. Bendeich was agreeable to the proposed order. Mr. Bendeich, however, had no knowledge that Lynch and Co. were dissatisfied with his new affidavit of documents served on 10 September or that they had filed an application on 2 September. Nor did he know that an application had come before the Court on 14 September until the next day, when Mr. Hewlett telephoned him to advise him that the matter had been mentioned the previous day.

[16]

30. On 15 September, Mr. Hewlett telephoned Mr. Bendeich to tell him that the matter had been mentioned the previous day and that the objectors would be delivering interrogatories and he would have to identify the author of particular documents. Mr. Hewlett did not, however, mention that he had consented on Mr. Bendeich's behalf to Mr. Bendeich paying the objectors' costs of this application, the third time that such an order had been made. The same day, Lynch and Co. forwarded to Mr. Hewlett the objectors' interrogatories. They were voluminous: they run to 124 pages. They appear to owe more to the capacity of the word processing equipment of the objectors' solicitors than to any professional judgment by them about the information the objectors truly needed to run their case. They went well beyond seeking identification of the authors of certain documents produced by Mr. Bendeich on inspection, the matter in respect of which Mr. Hewlett suggested it was appropriate to interrogate earlier on. Mr. Lynch appears to have sought to justify this by saying in his covering letter: "Our decision to interrogate your client is, in part, based upon the vigorous submissions made by you, on behalf of the Applicant, in your recent correspondence that it was entirely appropriate to interrogate your client with respect to this matter." Rule 143(1) required Mr. Bendeich to answer these interrogatories by 29 September, 1992. Mr. Hewlett never gave them to Mr. Bendeich; he did not see them until after he had terminated Mr. Hewlett's retainer and was shown them by his new solicitor on 25 November, 1992. It may be that, once he received these very extensive interrogatories, Mr. Hewlett was too embarrassed to inform Mr. Bendeich of the burden he had created for Mr. Bendeich by proposing that the objectors interrogate and then by consenting to them having unrestricted leave to interrogate. He made no attempt to obtain instructions from Mr. Bendeich to answer them. He just ignored the matter. He also long ignored his obligation to ensure that Mr. Bendeich complied with the order of 14 September insofar as it required Mr. Bendeich to file and serve a third affidavit of documents by 28 September, 1992.

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)

In the Matter 0f: Graham Ross Bendeich [1994] FCA 1504; (1994) 126 ALR 643 (1994) 53 FCR 422 (23 November 1994)