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The trial began on 19 July 2023. During the first two days, Peninsula Health produced documents that had not previously been discovered. Some included emails about its retention of Ms Louise O’Shea to review bariatric procedures. Other late-produced material included minutes of Bariatric Action Group meetings held before Munro’s injury. Those minutes recorded discussion of safety in dealing with bariatric patients, which the judge described as relevant to the central issue in Munro’s case (indemnity-costs section, paragraph 3).

The late discovery became a substantial part of the proceedings. The defendant had also raised an admissibility challenge to Ms O’Shea’s report. On 20 July, after further documents were produced and discovery was again discussed, a jury was empanelled and Munro’s counsel began an opening address. The jury was then discharged following argument about Munro’s pleadings, and the discovery issue had also led to the adjournment of the rest of the day (costs-days section, paragraphs 3–4). The matter was adjourned on 24 July.

The defendant conceded that the plaintiff should receive standard costs for 21 and 24 July. Munro sought indemnity costs for six days, including preparation, conferences and appearances. Judge Pillay decided both whether indemnity costs were justified and how many days should be allowed. The result was indemnity costs for four days: one day of preparation and three days of trial (opening paragraph 2; costs-days section, paragraph 5).

Why the court decided this way

The judge began with the usual position: costs are ordinarily assessed on a standard basis, unless a special or unusual feature justifies departing from it. The ruling took that proposition from Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666, as quoted in the ruling (indemnity-costs section, paragraph 1).

The ruling also adopted the relevant point from Yara Australia Pty Ltd v Oswal [2013] VSCA 337: breach of an overarching obligation under the Civil Procedure Act 2010 (Vic) may be taken into account when making a costs order, and some breaches may support indemnity costs. The Court of Appeal passage quoted in the ruling did not decide whether the Act created any new basis for such orders. Judge Pillay relied on the established possibility that litigation conduct can support indemnity costs, rather than identifying a new statutory costs principle (indemnity-costs section, paragraph 1).

A further proposition, drawn through Bolitho, was that unmeritorious or deliberately improper conduct may justify indemnity costs where the court should show disapproval and avoid leaving the successful party out of pocket. The ruling adds that late discovery without proper explanation may constitute litigation misconduct warranting such an order (indemnity-costs section, paragraph 1). The court also referred to Ugly Tribe Company Pty Ltd v Mario Sikola [2001] VSC 189, which identified as a relevant special circumstance a failure, after trial has begun and without explanation, to discover documents whose timely discovery would have considerably shortened, or possibly avoided, the trial (indemnity-costs section, paragraph 2).

The factual fit mattered. The late material was not peripheral: the minutes concerned safety in handling bariatric patients, the very subject of the alleged failure in the system of work. Judge Pillay also noted the resemblance to National Australia Bank Ltd v Petit-Breuilh (No 2) [1999] VSC 395, including that the party that failed to give full discovery would not have been a stranger to litigation, and that the late material was highly relevant (indemnity-costs section, paragraph 3).

Peninsula Health argued that the case should be distinguished because it had provided an explanation, describing the conduct as inadvertence, and because the effect of the documents on the outcome was not yet known. Judge Pillay found the explanations given to date “brief and vague” (indemnity-costs section, paragraph 7). The judge referred to Petit-Breuilh, where the court had treated incompetence in preparing a case as no reason for the opposing party to bear the burden of that incompetence. Judge Pillay concluded that describing the conduct as inadvertence did not, in this setting, answer the costs concern. Although the effect of the documents on the eventual trial remained speculative, the late discovery and the inadequate explanation together constituted a special circumstance warranting indemnity costs (indemnity-costs section, paragraph 7).

The number of days allowed was a separate assessment. Judge Pillay did not accept that preparation for the vacated trial had been entirely wasted. The matter had been relisted to begin four weeks later, with mediation to occur beforehand, and most preparation was expected to remain relevant. At the same time, the plaintiff might need to change aspects of the case presentation, and expert and potentially lay witnesses would need to be re-conferenced. The judge allowed one preparation day as thrown away (costs-days section, paragraph 2).

For 19 and 20 July, the judge considered the actual course of events. There had been argument about discovery and the expert report, further document production, a jury empanelment and the start of an opening address, followed by the jury’s discharge after a pleading issue arose. The judge allowed one day out of those two days. Together with the defendant’s concession for 21 and 24 July, that produced three days of trial costs and one day of preparation costs (costs-days section, paragraphs 1, 3–5).

Before and after state of the law

This ruling did not purport to change the general approach to costs. It stated that standard costs are usual and that an unusual or special feature is needed to justify indemnity costs, relying on Bolitho (indemnity-costs section, paragraph 1). Nor did it decide that every late discovery warrants indemnity costs.

Instead, the ruling applied existing propositions to a particular combination of circumstances: relevant documents were discovered after the trial had begun; the material addressed the central issue; the explanations were brief and vague; and the defendant’s characterisation of the omission as inadvertence did not persuade the judge that the plaintiff should bear the resulting costs. The ruling therefore illustrates that late discovery can fall within recognised grounds for indemnity costs when its context and explanation warrant that assessment.

The statutory setting identified in the ruling was the Civil Procedure Act 2010 (Vic), including the plaintiff’s reliance on s 26, and discovery under reg 29.01.1 of the County Court Civil Procedure Rules 2018 (Vic) (indemnity-costs section, paragraph 1). The ruling’s treatment of Yara was limited: an overarching-obligation breach may be relevant to costs, and may support indemnity costs in some cases. The judge did not make a separate finding in the text that Peninsula Health contravened s 26, nor did the ruling identify a new statutory test. Its operative reasoning was expressed in terms of late discovery, inadequate explanation and special circumstances.

The decision also demonstrates that the costs question has two parts. A finding that indemnity costs are justified does not mean every day claimed is automatically recoverable. The court separately assessed what work was actually wasted and what time was affected. Here, much of the preparation was expected to remain useful, so the judge awarded only one preparation day, while allowing three trial days (costs-days section, paragraphs 2–5).

Key passages with plain-English translation

The ruling states: “The usual order is that costs are awarded to the successful party and assessed on a standard basis, unless there is some special or unusual feature justifying a departure from that rule” (indemnity-costs section, paragraph 1, quoting Bolitho). In plain English, the ruling treats indemnity costs as an exception, not the default.

The ruling states that late discovery “without proper explanation may also amount to misconduct in litigation that justifies indemnity costs” (indemnity-costs section, paragraph 1, drawing on Bolitho). This does not say that lateness alone is enough. The explanation and the circumstances surrounding the discovery remain important.

Judge Pillay said that the explanations provided were “brief and vague” (indemnity-costs section, paragraph 7). That was the judge’s assessment of the explanation before the court, not a general finding about every instance of inadvertence. The judge then said: “I nonetheless find this to be a ‘special circumstance’ in which indemnity costs are warranted” (indemnity-costs section, paragraph 7). The reference to “this” is to the circumstances addressed in that section, including the relevance of the material and the insufficient explanation.

On costs thrown away, the judge said: “I do not accept the plaintiff’s time has been completely thrown away in preparation for the vacated trial” (costs-days section, paragraph 2). In other words, some preparation would still assist at the relisted trial, even though the adjournment meant some work would have to be repeated or changed.

The operative order was: “the plaintiff is awarded costs for a total of four days on an indemnity basis, being one day of preparation and three days of trial” (costs-days section, paragraph 5). The order was therefore both favourable to the plaintiff on the indemnity-basis issue and narrower than the six days claimed.

What fact patterns trigger this precedent

The ruling is most directly relevant to costs disputes where a party discovers material after trial has begun, particularly where the material is important to an issue central to the proceeding. It is also relevant where the explanation for the timing of discovery is assessed by the court as brief or vague, and where the late production has affected the conduct or progress of the trial.

The circumstances identified in Ugly Tribe, as quoted by Judge Pillay, provide a related example: a failure after trial commencement, without explanation, to discover documents that timely discovery would have considerably shortened or possibly avoided the trial (indemnity-costs section, paragraph 2). Munro applied that type of concern to late discovery of documents about bariatric-patient safety.

The ruling should not be read as establishing that any inadvertent failure to discover documents will attract indemnity costs. The court considered the documents’ importance, the timing, the explanation, the defendant’s litigation experience as discussed by reference to Petit-Breuilh, and the consequences for the trial. Nor does the ruling establish that all preparation or trial days affected by late discovery are recoverable. The court examined which work remained useful and allowed only the days it found appropriate.

For practitioners reviewing a similar costs issue, the decision points to factual matters the court examined: when the documents were produced; what they concerned; how closely they related to the pleaded issues; what explanation was given; whether the explanation was sufficiently detailed; what steps in the proceeding were disrupted; what work remained usable after adjournment; and what time was genuinely lost. Those are features of the court’s reasoning in this ruling, not a substitute for considering the governing rules and the evidence in another proceeding.

How later courts have treated it

The supplied judgment contains no citations to later decisions applying, distinguishing or otherwise treating Munro. It was ruled on 24 August 2023 and marked as last updated on 5 September 2023, but those dates do not establish how later courts have treated it.

The authorities the judge discussed are earlier decisions: Bolitho, Yara, Ugly Tribe and Petit-Breuilh. They are relevant here only to the extent that Judge Pillay described or relied on them. The ruling reports that Bolitho set out the usual standard-costs position and recognised late discovery without proper explanation as a possible basis for indemnity costs; that Yara recognised the relevance of breaches of overarching obligations to costs; and that Ugly Tribe identified a particular late-discovery circumstance as a possible special circumstance. The judge also considered the factual parallels with Petit-Breuilh. This ruling does not provide a later appellate review or a comprehensive account of subsequent authority.

Accordingly, the source text supports describing Munro as an application of those earlier propositions to the specific discovery and adjournment circumstances before the County Court. It does not support claims about whether the decision has been followed, distinguished or confined by later courts.

Still-open questions

The ruling does not make a separate, express determination that Peninsula Health breached s 26 of the Civil Procedure Act 2010 (Vic), although the plaintiff relied on that provision and the court discussed the relevance of overarching obligations. It does not set out a detailed finding on each element of the alleged discovery failure under reg 29.01.1 of the County Court Civil Procedure Rules 2018 (Vic). The reasons focus on the costs consequence of the late discovery and the explanation provided.

The judge acknowledged that it was speculative whether the matter would proceed after the documents had been discovered (indemnity-costs section, paragraph 7). The ruling therefore did not determine whether the newly discovered material would affect the ultimate outcome of the negligence claim. The costs decision was made without resolving that merits question.

The decision also leaves open how the principles would apply where a party gives a detailed, persuasive explanation for late discovery; where the documents are less central; where the late discovery does not disrupt the trial; or where the parties disagree about how much preparation remains useful. Judge Pillay did not purport to set a formula for apportioning costs days. The four-day award reflects the particular timetable and procedural events described in the reasons.

The status of any subsequent treatment is not ascertainable from the supplied judgment text. This analysis is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.