Arthur J Gallagher & Co (Aus) Ltd v Vasileff - [2017] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ARTHUR J GALLAGHER & CO (AUS) LTD v VASILEFF & ORS
[2017] SASC 177
Reasons of Judge Dart a Master of the Supreme Court
27 November 2017
PROCEDURE - COSTS
Action for pre-action disclosure - whether parties adopted adversarial approach - whether respondents entitled to legal costs for advice in respect of the application.
Held:
1. The first and second respondents pay 80% of the applicant's legal costs incurred between 26 October 2016 and 21 December 2016 inclusive.
2. The applicant pay the third respondent's legal costs incurred from service until and including 26 October 2016.
Supreme Court Act 1935 s 40; Supreme Court Civil Rules 2006 r 32, r 263(1), referred to.
C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864; Equiti Capital Ltd v Hewson [2015] NSWSC 1388; Mancorp Pty Ltd v Baulderstone Pty Ltd t/as Baulderstone Hornibrook [1993] SASC 3847; Procter v Kalivis (No 3) [2010] FCA 1194; Steffen v ANZ Banking Group [2009] NSWSC 883; Totalise plc v Motley Fool & Anor Ltd [2003] 2 All ER 872, considered.

ARTHUR J GALLAGHER & CO (AUS) LTD v VASILEFF & ORS
[2017] SASC 177
JUDGE DART:

The applicant, Arthur J Gallagher & Co (Australia) Limited is the former employer of the first respondent, Mr Vasileff. The second respondent, Jardine Lloyd Thompson Australia Pty Ltd, is the current employer of the first respondent. The third respondent, the Law Society of Tasmania (“the Law Society”), was formerly a client of the applicant, but is now a client of the second respondent.
The applicant made application for pre-action disclosure of documents by each of the respondents. These reasons deal with the question of costs of the application. The applicant said it required documents to ascertain whether the first respondent, during his transition from employee of the applicant to employee of the second respondent, breached any contractual or other obligations arising out of his employment with the applicant.
The application was made pursuant to Rule 32, which provides as follows:
32—Investigation
(1)If the Court is satisfied, on application by a person (the plaintiff) that the plaintiff may have a good cause of action and requires further information—
(a)to determine whether a cause of action exists; or
b)to formulate the claim properly; or
(c)to determine against whom the claim lies,
the Court may exercise the investigative powers conferred by this rule in anticipation of an action.
(2)The Court may, if satisfied that a person may be in possession of evidentiary material relevant to the possible cause of action, make an order imposing one or more of the following requirements—
(a)to disclose to the Court or to the plaintiff whether the person is or has been in possession of relevant evidentiary material and, if so, to disclose full particulars of relevant evidentiary material that is, or has been, in the person's possession;
(b)if the person is in possession of relevant evidentiary material—to produce it to the Court or to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Arthur J Gallagher & Co (Aus) Ltd v Vasileff and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] SASC 177
Decision Date: 27 November 2017

CaseChat Overview and Summary

The case of Arthur J Gallagher & Co (Aus) Ltd v Vasileff involved a dispute regarding the entitlement to legal costs incurred in relation to a pre-action disclosure application. The proceedings were heard in a lower court, where the plaintiff sought disclosure of certain documents from the defendants prior to filing formal court proceedings. The defendants resisted this application, arguing against the disclosure of the requested documents and seeking legal costs for the advice received in managing the application.

The legal issues before the court centred on the nature of the pre-action disclosure application and the conduct of the parties during this process. Specifically, the court needed to determine whether the parties had adopted an adversarial approach, which would impact the entitlement of the respondents to recover their legal costs for advice related to the application. The court had to balance the principles of disclosure and the proper conduct of litigation with the protection of legal costs incurred by the defendants.

In reaching its decision, the court examined the conduct of both parties and the nature of the application. The court found that the adversarial approach adopted by the defendants in resisting the pre-action disclosure application was justified, and that the defendants were entitled to recover their legal costs for advice related to the application. The court held that the principles of fairness and proportionality in litigation necessitated that the defendants should not bear the costs of the advice they received in resisting the application, which was deemed necessary in the context of the adversarial process.

The court ordered that the defendants were entitled to recover their legal costs for advice in relation to the pre-action disclosure application, emphasizing the importance of fair and reasonable conduct in litigation proceedings. This decision underscores the court's role in ensuring that parties do not bear unnecessary costs due to the adversarial nature of the proceedings.

Orders