Vitoros v Raindera Pty Limited and ors

Judgment 1On 18 February 2014, I made the following orders in these proceedings: (1)The plaintiff is to respond to the fifth defendant's letter of 17 February 2014 in relation to discovery by 3 March 2014. (2)The fifth defendant is to serve any lay and expert evidence upon which it proposes to rely by 11 April 2014. (3)The plaintiff is to serve any evidence in reply by 2 May 2014. (4)The matter is listed for further directions before me on 7 May 2014 at 9.15am. (5)The plaintiff is to pay the costs of the fifth defendant of, and incidental to, the Notice of Motion filed in the proceedings on 20 November 2013. (6)The plaintiff is to pay the costs of the fifth defendant of, and incidental to, the appearances before the Court in these proceedings on 15 November 2013, 21 November 2013, 29 November 2013, 16 December 2013, 11 February 2014 and 18 February 2014. (7)The costs payable pursuant to the orders in paragraphs (5) and (6) are to be paid forthwith, pursuant to rule 42.7(2) of the Uniform Civil Procedure Rules. (8)The costs ordered to be paid in orders (5) and (6) are ordered to be paid on the usual basis, as agreed or assessed. (9)I grant the parties liberty to restore the matter to the list before me by contacting my Associate on 48 hours notice. 2The making of those orders followed the matter being before me on a series of occasions in the course of which I dealt with, amongst other things, an application by the fifth defendant for an order that the proceedings be dismissed. When I made those orders time constraints prevented me from providing my reasons for doing so. My reasons now follow. 3The matter came before the Registrar on 15 November 2013. On that day it was adjourned until 21 November 2013, at which time the Registrar made an order requiring the plaintiff to file and serve an affidavit, by the close of business on 19 November 2013, explaining why it was that he had not complied with a timetable for the service of expert evidence. When the matter again came before the Registrar on 21 November 2013, it was listed before the Duty Judge on 29 November 2013 for the purpose of having the plaintiff show cause why the proceedings should not be dismissed due to his failure to comply with previous orders of the court. 4On 29 November 2013, when sitting as Duty Judge, I heard argument in relation to that issue. Also returnable before me on that day was a notice of motion filed by the plaintiff on 20 November 2013 seeking various orders in relation to the issue of discovery. However, that notice of motion was withdrawn. Having heard argument on 29 November 2013, I reserved my decision. 5On 16 December 2013, I gave judgment in which I concluded that it was not appropriate, in all of the circumstances, for the proceedings to be dismissed. On that occasion I made the following orders: (1)The plaintiff is to serve any expert report or reports upon which it proposes to rely by 5pm on 7 February 2014; (2)In the event that the plaintiff fails to comply with the provisions of order 1, the proceedings shall be deemed to be dismissed; (3)The plaintiff's solicitor, Angelo Andresakis, is to provide to my associate by 4pm on Monday 3 February 2014 such affidavit or other material in relation to the question of whether or not an order should be made against him personally in respect of the costs incurred in relation to this application on 15 November 2013, 21 November 2013, 29 November 2013 and 16 December 2013; (4)The matter is stood over for further directions before me on Tuesday 11 February 2014 at 9.15am; (5)The notice of motion of 20 November 2013 by the plaintiff is dismissed. 6In making those orders, I had indicated to the parties that subject to hearing any further submissions, I considered it appropriate that the plaintiff pay the fifth defendant's costs. However, as will be evident from the terms of order (3) there was an issue as to whether any such order should be made against the plaintiff, or against his solicitor personally. 7When the matter came before me on 11 February 2014 I enquired of the parties as to whether or not the expert report had been served by the plaintiff in accordance with my previous order. Counsel for the plaintiff, on instructions, informed me from the bar table that service had been effected. Counsel for the fifth defendant informed me that on his instructions, this was not correct. In view of the obvious importance of this issue, I further adjourned the matter until 18 February 2014 and made orders facilitating the service of further evidence. 8Pursuant to my orders of 11 February 2014, the plaintiff filed an affidavit of Angelo Andresakis, solicitor, of 11 February 2014. The fifth defendant filed an affidavit of James Baird, solicitor of 17 February 2014. In short, those affidavits establish the following: (i)the expert report was received in the office of Mr Andresakis at about 3:40pm on 7 February 2014, i.e. a little more than an hour before it was required to be served; (ii)Mr Andresakis was not in the office that afternoon but had left instructions for his secretary to serve the report on the fifth defendant; (iii)a letter dated 7 February 2014 was sent from the office of Mr Andresakis to the solicitors for the fifth defendant, under cover of which was the expert report; (iv)because the letter of 7 February 2014 is directed to a street address, it is to be inferred that it was sent via pre-paid post; (v)the letter of 7 February was received in the office of the fifth defendant's solicitor on 12 February 2014. 9Three further observations should be made in relation to this evidence. 10Firstly, the affidavit of Mr Andresakis makes no reference to what, if any, instructions he gave his secretary about how service of the expert report was to be effected. Given the orders I had previously made, and given that the report was not received at Mr Andresakis' office until late on the afternoon of the day on which it was ordered to be served, it was necessary that service be effected as a matter of urgency. That urgency was obviously not met by serving the report by way of pre-paid post. 11Secondly, other than making a broad reference to the fact that he gave his secretary instructions as to the necessity to serve the report, the affidavit of Mr Andresakis does not indicate what, if any, instructions he gave his secretary as to how service was to be effected so as to comply with the orders I had previously made. 12Thirdly, the affidavit of Mr Andresakis completely fails to address the issue of when it was that the letter of 7 February was actually placed in the post. 13What is clear however is that service of the expert report was not effected in accordance with orders that I made on 16 December 2013. The consequences of a failure to comply with those orders were set out in order (2) I made on that day. 14Notwithstanding the fact that service had not been effected in accordance with the orders I had made, counsel for the plaintiff urged me not to dismiss the proceedings. He submitted, in effect, that Mr Andresakis had taken steps to at least comply with the spirit, if not the precise terms, of my order. Counsel for the fifth defendant conceded that I retained a discretion not to dismiss the proceedings notwithstanding the terms of my previous order. He was unable to point to any prejudice which would be visited upon the fifth defendant if I determined that the proceedings ought not be dismissed, and he candidly accepted that had the expert report been served by facsimile or email on the afternoon on which it was received, he would have little or no cause for complaint. 15The failure on the part of the plaintiff to comply with my orders of 16 December 2013 represents the latest in a series of failures to comply with orders of the court. Indeed, it was those previous failures which caused the Registrar to refer the matter to the Duty Judge. 16From the point of view of an explanation as to why the expert report was not served in accordance with the order I had made, the affidavit of Mr Andresakis is barely adequate. In fact, it poses more questions than it answers. The terms of my order, and the potential consequences of a failure to comply with it, must, or at least should, have been self evident to Mr Andresakis. He had an obligation, to the court as well as to his client, to ensure that service was effected in accordance with that order. In circumstances where the report was not received until, as it were, the eleventh hour, and bearing in mind his absence from his office at that time, it was incumbent upon Mr Andresakis to leave clear instructions as to the necessity to ensure that the report was served immediately upon being received. Moreover, the necessity to pay proper attention to these matters was heightened, firstly as a result of the procedural defaults which saw the matter come before me to begin with, and secondly because of the potential consequences of a failure to effect service of the expert report in accordance with my order. 17However, given the absence of any demonstrable prejudice being visited upon the fifth defendant, and having regard to the fact that there was at least some attempt to effect service, I do not regard this as an appropriate case in which the proceedings ought be dismissed. 18That leaves the question of costs. In my view, there is no reason whatsoever why the plaintiff should not be responsible for the payment of the costs of the fifth defendant, firstly in respect of the notice of motion which was filed and then withdrawn, and secondly in relation to the various appearances before the Registrar, and later before me, to which I have referred. The necessity for those various appearances arose as the consequence of procedural defaults on the part of the plaintiff. The more pressing question is whether or not any costs order should be in terms requiring Mr Andresakis to pay those costs personally. 19The orders I made on 16 December 2013 gave Mr Andresakis the opportunity to be heard as to why an order of that nature should not be made against him. In response, he filed an affidavit setting out the circumstances in which those earlier procedural defaults had occurred. There are, in my view, a number of aspects of Mr Andresakis' conduct of the matter which fall short of the standard that the court is entitled to expect from a legal practitioner. However, I am not satisfied in all of the circumstances that the evidence establishes neglect, incompetence or misconduct of the level of seriousness which is required to attract the application of s. 99 of the Civil Procedure Act 2005. 20However, I consider that this is a matter in which it is appropriate to exercise the discretion conferred on me pursuant to rule 42.7(7) of the Uniform Civil Procedure Rules to order that the plaintiff pay the fifth defendant's costs forthwith. The cases which might justify the exercise of that discretion include those in which the conduct of a party is unreasonable (see Fiduciary Limited and anor v Morningstar Research Pty Limited and ors (2002) 55 NSWLR 1; [2002] NSWSC 432). In my view, the conduct of the plaintiff to which I have referred falls into that category. In coming to that view, I have had particular regard to the fact that the various appearances before the Registrar, and before me, were necessitated by the plaintiff's ongoing failures to comply with orders of the court.