Plaintiff v Defendants

Unless the plaintiff files and serves an affidavit of documents by 4 pm on 29 November 2019, the proceeding is dismissed with the plaintiff to pay the defendants' costs of the proceeding on a standard basis to be taxed in default of agreement.

3 That day, the plaintiff's counsel stated to the court. Firstly,

Mr Galatas [that is the plaintiff's instructing solicitors] assures me that he has all of the documents now to enable him to make discovery for the plaintiff. He tells me that he is now in a position to make discovery and he is able to do so by 5 December.

4 Secondly, I clarified with counsel whether she had instructions to consent to paragraph 7 of the orders ultimately made, which provided that the proceeding be dismissed in default of the affidavit of documents being filed and served by 29 November 2019. While she indicated that she was not instructed to consent to an extension to 29 November 2019 (because her instructions were to consent to an extension to 5 December 2019 instead), she stated, in relation to the self-executing nature of that order,

I have instructions to consent to that, to the self-executing nature of that order.

5 The defendant has now proved by an affidavit that there was not compliance with paragraph 1 of my order. The plaintiff did not file and serve an affidavit of discovery by 4.00pm on 29 November 2019. The plaintiff does not contest that issue. He accepts that he is in default and his solicitor, Mr Galatas, has filed an affidavit seeking to explain that default and obtain an extension of the time for compliance.

6 The plaintiff's application is to extend the time for compliance with order 1 of my orders of 21 November 2019.

7 Counsel's instructions as communicated to the court on 21 November 2019 do not now appear consistent with Mr Galatas' affidavit, yet he has not clearly resolved that inconsistency by his affidavit. Mr Galatas states that when he was informed that the order had been made, it was diarised, but not in a way that identified its self-executing nature. He also disclosed that, notwithstanding the information conveyed to the court, he was not in a position where he had all of the documents and was awaiting for instructions from the plaintiff as to any other documents which must be included in the affidavit of documents.

8 On 29 November 2019, the plaintiff's solicitors referred in correspondence to potentially discoverable documents in relation to applications to the tribunal by Western Institute of Technology.

9 Earlier today, the plaintiff filed and served an affidavit of documents in purported remedy of his default that discloses some 170 separately numbered items.

10 The consequence of paragraph 7 of my orders of 21 November 2019 was that on 29 November 2019, the proceeding was dismissed and the plaintiff is now obliged to pay the defendants' costs of the proceeding to be taxed on the standard basis.

11 There is no issue that I have jurisdiction to set aside the judgment created by that order and to, in effect, extend time to 9 December 2019 to enable the plaintiff to rectify his default by filing the affidavit on the next day that the Registry is open so the proceeding might continue.

12 The plaintiff submitted that I should be satisfied in all of the circumstances that it would be unjust to deprive him of a trial on the merits and that I ought to extend the time accordingly because there had been a good faith compliance with his obligation to file an affidavit of documents. This submission was made principally on the strength of Ridge Lane Pty Ltd v Gadzhis.[1]

13 The plaintiff submitted that as the affidavit was sworn and served five business days after the date required by the self-executing order, his delay was minimal and there could be no prejudice to the defendant by reason of this late service. The defendant did not otherwise contend that there was prejudice incapable of being cured by an appropriate order of costs, except in the sense that a general delay will always be prejudicial to the parties to litigation as discussed by the High Court in Aon Risk Services Australia Limited v Australian National University.[2]

14 However, the defendant submitted that I ought not to set aside the judgment that followed on my earlier order for three reasons.

15 First, the plaintiff is plainly responsible for a significant period of delay, not simply the period of five days since the self-executing judgment became effective. The court made orders in June requiring the plaintiff to file and serve his affidavit of documents by 31 July 2019. That order was not complied with and plaintiff has failed to provide any meaningful explanation for the overall delay in making discovery. So much may be accepted. The defendant contends that this is a relevant circumstance to take into account in the exercise of my discretion.

16 Secondly, the defendant relied on the decision of the Court of Appeal in Jorgensen v Slater & Gordon Pty Ltd,[3] which, it submitted, makes it clear that the governing consideration is what justice requires, emphasising, though, that the power to relieve against the consequences of a self-executing order must be exercised with care because regard must be had to the necessity for maintaining the principle that orders made by the court are to be complied with and not to be ignored.

17 Relevantly, the Court of Appeal identified at least four matters to which the court should have regard as bearing on the exercise of the discretion:

(a) the circumstances in which the self-executing order was made;

(b) the reasons for non-compliance with it;

(c) the prejudice to the defaulting party if relief were not granted; and

(d) the prejudice to the innocent party if relief were granted.

18 It is significant to observe that the prejudice to the plaintiff if relief was not granted is significant. The proceeding is dismissed. The limitation period applying under s 5 (1AAA) of the Limitation of Actions Act 1958 (Vic) has passed and the plaintiff will no longer have an opportunity to pursue a remedy against the defendant. That is not to say that the plaintiff may not have other remedies, but I am not in a position to make any assessment of that opportunity and do not take it into account.

19 The prejudice to the defendant if the relief were granted is not compelling in the circumstances. Substantially that prejudice can be relieved by the appropriate costs order. To the extent that there is prejudice caused generally through delay, I do not have specific evidence that would enable me to put flesh on the bones of that submission and conclude that delay in this case creates meaningful prejudice for the defendant.

20 As I stated on an earlier occasion in this proceeding, if, in order to deal with the truncated timeframes that the plaintiff's default has caused, the defendant is required to apply extra resources to the preparation of its defence in time for trial, the defendant may apply at an appropriate time for costs orders in the proceeding adequately compensating it for the application of additional resources to have the matter ready for trial. The trial is still some time away and the court will not be minded to adjourn the trial save for good reason.

21 There is some merit in the defendants' contention that the plaintiff has not provided a satisfactory explanation of his delay. However, the reasons for non-compliance with the self-executing nature of the order, which focus essentially on what has occurred over the last couple of weeks, suggests that non-compliance may be the responsibility of the plaintiff's solicitor. It is difficult to make a clear assessment on this question because, as the defendant pointed out, the plaintiff did not appear to actually in a position to swear the affidavit of documents in accordance with the order of 29 November 2019.

22 That said, I proceed in relation to this application on the basis that there was no intention on the part of either the plaintiff or his solicitors to deliberately flout or ignore the order. It is not suggested that there were any extraneous circumstances that precluded compliance with the order. The failure to obey the order may ultimately have been caused by a combination of the poor diary practices within the plaintiff's solicitor's office and the failure of the plaintiff's solicitor to sufficiently press the plaintiff to ensure strict compliance with the order.

23 The defendant's third ground was in two parts. First, the affidavit was not in proper form because it did not comply with the Rules, in that it did not state in respect of documents that once were in the plaintiff's possession but had ceased to be in his possession, the date on which the plaintiff was last in possession. This was a challenge to the form of paragraph 6 of the affidavit that refers to email correspondence that may have previously been deleted from the plaintiff's computer. It identifies the parties to this correspondence but does not identify the date upon which the documents may have been deleted. It is not at all clear to me that there could be a better answer to paragraph 6 of the affidavit of documents, or that this alleged defect in form is the gravamen of the defendant's complaints about discovery.

24 The defendant contended that the objection was technical but nevertheless relied on the decision of the Full Court in Freeman v Rabinov.[4] In that decision, Lush J observed that the test to be applied in determining whether the order had been complied with depended on the construction of the terms of the order and whether the event that triggered judgment was defined with precision. The triggering default could be the time for compliance and/or the mode of compliance. In the present case, I am satisfied that the order identified the operative default to be a failure to act within the specified time.

25 The conduct required was to swear and file an affidavit and what is filed must be a document made in good faith and not an illusory act. In Freeman v Rabinov, Lush J treated the form of description of an item as a defect in content, not in form, and concluded that the defect was not insufficient compliance so as to show a want of good faith or to be illusory as an attempt to comply with the order.

26 I consider that in the present case, the defect alleged is better treated as a defect in substance and it is not, I think, appropriate to undertake an inquiry into a defect of that sort on this application. For present purposes, I am satisfied that, at least in respect of this first part of the third ground of objection, the affidavit can be said to be a good faith attempt to comply with the order. Further, it would provide necessary information to enable inquiries to be made to identify whether copies of deleted material can be obtained from other sources. I accept the affidavit as constituting a good faith attempt to provide an affidavit that will comply with the order if time is extended.

27 The defendant's second argument in its third ground was that the affidavit was not a good faith attempt for a different reason. On its analysis of the pleadings, particularly of the pleaded imputations, the defendant has identified substantial categories of documents that prima facie would be in the possession of the plaintiff and about which there has been no discovery at all. A schedule providing extensive particulars of the alleged deficiencies in discovery was tendered.

28 This argument has some attraction because discovery needs to be promptly completed to enable proper preparation of complex defences for trial. However, it is not appropriate on this application, being to set aside a self-executing judgment, to enter into a detailed analysis of the question of whether further and better discovery would be appropriate. As Hargrave J, as he then was, noted in Ridge Lane Pty Ltd v Gadzhis:

Of course, where the document provided in response to a self-executing order complies in form but contains some defects of substance, the Court retains the power to make further orders for the supply of the information necessary to correct the inadequacy of the document which has been provided.[5]

29 Given the complexity of the discovery issue evident in the defendant's submission, the fact that this aspect of the application has not been made on appropriate notice to the plaintiff and the plaintiff's counsel has stated he is not in a position to address this argument, it may well be the case, as it often is in many proceedings, that further and better discovery is required.

30 For present purposes, I am not persuaded that the prima facie case for further and better discovery that has been made by the defendant is sufficient to enliven the want of good faith requirement, in the sense that it applies when resisting setting aside a self-executing judgment, that is principally conditioned against a temporal default.

31 However, the plaintiff is now on notice that there is a significant dispute about the adequacy of discovery in a matter that is inexorably proceeding towards its trial date and he is on notice from 6 December 2019 of the obligation to immediately check that his discovery is adequate. The plaintiff should not expect indulgences from the court if adequate discovery, as appears likely, is pursued by further application.

32 The plaintiff has, at the time of his application to set aside or vary the self-executing order, complied with the terms of that order. I consider, assessing the matter globally, that it would be unjust to deprive the plaintiff of his right to a trial on the merits of the proceeding in the circumstances.

33 I will exercise my discretion in favour of the plaintiff, subject to also ordering that the plaintiff pay the defendants' costs in respect of all of the defendants' attempts so far to obtain compliance with discovery, to be taxed on an indemnity basis and to be paid forthwith, notwithstanding that the costs order is interlocutory.

[1] [2007] VSC 212.

[3] [2008] VSCA 110.

[4] [1981] VicRp 52; [1981] VR 539.

[5] [2007] VSC 212 [38] (citation omitted).