HARRIS v VILLACARE PTY LIMITED

Judgment 1RS HULME J: These reasons arise out of disquiet I experienced during the hearing of an application for preliminary discovery on the issue of whether or not there had been such an incurring of costs that the solicitors for the Respondent to the application should be made to bear them, or some of them personally. I identified two matters as inspiring my disquiet, firstly, the volume of material, in particular, an affidavit by a Mr Myles, a solicitor in the employ of the Defendant's solicitors, Hicksons Lawyers, and secondly, the fact that, there being evidence in an affidavit from a Mr Chandra suggesting that the Plaintiff's injury was due to the fault of someone other than himself, the Defendant had not co-operated in providing the relevant material without the need to come to court. 2On 4 December 2006, the Plaintiff was injured when a semi-trailer he was driving overturned. He would seem to have been seriously injured. He took Workers Compensation proceedings on 8 June 2010 against "Bunker Freight Lines" which was said to be his employer. 3On 8 December 2010, there was filed on his behalf in this Court a Summons seeking by way of preliminary discovery that "pursuant to Part 5 Rules 5.2 and/or 5.3 of the UCPR Rules 2005 the Defendant to give discovery of documents as referred to in the Affidavit of Zubin Hiramanek sworn 6 December 2010". Named as Defendant in the summons was "Villacare Pty Limited (Bunker Freight Lines)". 4In his affidavit, Mr Hiramanek had said that he was a solicitor in the employ of the Plaintiff's Solicitors, provided some sketchy information as to the circumstances of the accident on 4 December 2006, referred to the Plaintiff having been in a coma for 27 days after the accident and having suffered, inter alia, brain damage and loss of memory including any memory of the accident. Mr Hiramanek also said that at the time of his accident:- The Plaintiff was driving a semi-trailer, in the course of his employment as a truck driver with Bunker Freight Lines Pty Limited, now known as Villacare Pty Limited, the Defendant. 5Mr Hiramanek also said that on his instructions, the truck (by which I infer he means a prime mover) driven by the Plaintiff was loaded with a trailer registration number ST 02 ED at the Defendant's depot and he wished preliminary discovery of documents in an effort to ascertain:- (i) The name of the party(s) that loaded the trailer immediately prior to the date of the accident. (ii) What was loaded onto the trailer. (iii) How the load was loaded and/or secured. (iv) Where individual items of the load were loaded. (v) The name of the Compulsory Third Party insurer of the trailer. (vi) The circumstances of how the accident occurred. 6Mr Hiramanek said that the Plaintiff did not know where and by whom the trailer itself was loaded. He said that the Plaintiff had been in receipt of Workers Compensation benefits, "paid by the workers compensation insurer of his employer, the Defendant ever since the accident", that claims pursuant to the Motor Accidents Compensation Act 1999 and the Workers Compensation Legislation had been served on the Defendant and that he had sought to obtain from the Defendant much of the information referred to in the immediately preceding paragraph. Mr Hiramanek said that he had sought information from the workers compensation insurer of the Defendant without success and annexed correspondence he said that he had forwarded to the Defendant to which also he said that he had not received a reply. The correspondence was addressed to Bunker Freight Lines and Allianz Workers Compensation. 7Given the way in which proceedings progressed, it is convenient to reflect on the terms of Part 5 Rules 2 and 3 of the UCPR. In substance, so far as is relevant to the issues before me, an applicant who wishes to succeed under Rule 5.2 has to establish that:- (i) Having made reasonable enquiries, (ii) he is unable to sufficiently ascertain the identity of a person for the purpose of commencing proceedings against that person, and (iii) the respondent to the application may have information or a document that tends to assist in establishing that identity. 8In substance, so far as is relevant to the issues before me, an applicant who wishes to succeed under Rule 5.3 must establish:- (i) He may be entitled to make a claim against the respondent to the application, but (ii) having made reasonable enquiries, (iii) he is unable to obtain sufficient information to decide whether to commence those proceedings, and (iv) the respondent may have a document which would assist the applicant to make a decision. 9Considered in the light of my summaries of the rules, it is apparent that the claim referred to in paragraph 5(i) above fell within Rule 5.2, the claim referred to in paragraph 5(vi) fell within Rule 5.3, the claim referred to in paragraph 5(v) fell outside both rules and the claims referred to paragraphs 5(ii) to (iv), if relevant at all, also fell within Rule 5.3. None of the claims were directed to ascertaining the identity of the Plaintiff's employer, or Villacare or Bunker Freight Lines or Bunker Freight Lines Pty Limited. 10On 24 January 2011, an Appearance was filed on behalf of the Defendant. In that part of the document as set out the "Title of Proceedings" the Defendant was referred to as "Villacare Pty Limited (incorrectly sued as Villacare Pty Limited (Bunker Freight Lines))". 11After a number of intermediate events to which it will be necessary to refer, the application for preliminary discovery came before me on 14 July last for determination. After it had proceeded for some time, I was informed that the parties had reached agreement, short minutes were handed up and I made orders in accordance with them. The orders included that the Defendant was to provide discovery in specified respects and was to pay the Plaintiff's costs of the Summons as agreed or assessed. It was after making those orders that I expressed the disquiet referred to in [1] above and raised the possibility that the Defendant's solicitors should be ordered to pay the costs personally. 12Counsel then appearing for Villacare Pty Limited sought to persuade me that there was no need for me to pursue the matter of costs. He was unsuccessful and proceedings were stood over to 22 July to give the solicitors time to consider the matters I had raised. On that day, there was no appearance for the Defendant but Mr R Burbidge QC appeared for Hicksons Lawyers. He said he was not in a position to adduce evidence then but he sought to persuade me that it was not necessary that the matter proceed to a full hearing. He also was unsuccessful and the matter was further adjourned to 29 September. 13Shortly before 29 September, I was provided with an affidavit of Mr Stewart Cameron, a partner of Hicksons - the affidavit was ultimately filed on 29 September - detailed written submissions of Mr Burbidge, and copies of a number of documents, being:- (i) Extracts from Workplace Injury Management and Workers Compensation Act 1987 and the Workers Compensation Regulations 2010 relating to legal costs. (ii) Letter from Hicksons to (the Plaintiff's solicitors) dated 13 January 2011. (iii) Transcript of 14 July 2011. (iv) Transcript of 22 July 2011. (v) Consent short minutes of order of 24 January 2011. (vi) Consent short minutes of order of 24 February 2011. (vii) Plaintiff's submissions of 14 April 2011. (viii) Plaintiff's submissions of 26 June 2011. (ix) Defendant's submissions of 5 July 2011. (x) Plaintiff's submissions of 14 July 2011. (xi) Handwritten consent orders of 14 July 2011. 14It is apparent that, apart from the first, these are copies of documents that have come into existence in the course of the proceeding and could be expected to be found, as is the fact, on the Court file. 15In the penultimate paragraph of the written submissions, Mr Burbidge said that in light of what was contained in the affidavit and submissions and what had been said on 22 July, Hicksons did not seek to be heard further unless I believed that I would be assisted by further argument and enquiry in that regard would be made on 28 September. When it was, I informed Mr Burbidge that whether further submissions should be made was a matter for him or his clients but I did not require any. In fact no-one sought to argue the matter further on 29 September and I reserved my decision. 16It is necessary to return to the details of the proceedings. On 13 January 2001, Mr Cameron of Hicksons wrote to the Plaintiff's Solicitors referring to the summons and confirming that Hicksons were instructed by "Allianz Australia Workers Comp (NSW) Limited the workers compensation insurer for Villacare Pty Limited". In the letter Mr Cameron indicated that he had yet to receive instructions as to whether his client intended to oppose the orders sought but went on to, inter alia: