Davis v DP World Melbourne Limited (Ruling)

[2023] VCC 1590

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-23-04364

GLENN DAVIS	Plaintiff
v
DP WORLD MELBOURNE LIMITED	Defendant

---

JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 August 2023, 1 September 2023 (via Zoom)
DATE OF RULING:	11 September 2023
CASE MAY BE CITED AS:	Davis v DP World Melbourne Limited (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1590

REASONS FOR RULING
---

Subject:COSTS

Catchwords:              Negligence – Adjournment of trial – Late amendment to pleadings - Discovery

Legislation Cited:      Courts (Case Transfer) Act 1991; Evidence Act 2008; County Court Civil Procedure Rules 2018; County Court Act 1958

Cases Cited:Taylor v Pace Developments Ltd [1991] VCC 406

Ruling:The plaintiff is to pay the defendant’s costs thrown away by reason of the adjournment of the trial on a standard basis, including the costs of 14 and 15 August 2023, with such costs to include the costs of senior and junior counsel for the defendant, and to be assessed by the Costs Court in default of agreement. The costs of the plaintiff’s summons and the costs of 11 August 2023 are reserved.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC with Mr A Saunders	Arnold Dallas McPherson
For the Defendant	Mr S Smith KC with Mr T Storey	Lander & Rogers

HIS HONOUR:

Introduction – a costs Ruling

1This proceeding was listed before me on 14 August 2023 to commence as a Judge and jury trial.  On 15 August 2023, I vacated the trial and refixed it for trial on 27 August 2023.

2This Ruling relates to the appropriate cost Orders associated with the adjournment of the trial.

3For this Ruling, I have considered the material filed by the parties in respect to the question of the costs of the adjourned trial, including the written submissions and subsequent oral submissions.

4It is necessary to give some background to understand how and why the proceeding was adjourned.  The following background is extracted from the material filed by the parties, the previous Orders made during the proceeding and my own involvement in the proceeding. I consider that the timeline of events is not in dispute.

Background and procedural history

5Glenn Davis (“the plaintiff”) commenced a common law proceeding against DP World Melbourne Limited (“the defendant”) in respect to a workplace injury said to have been suffered by him in the course of his employment with the defendant between February 2012 and May 2018.

6The common law proceeding was commenced in the Supreme Court of Victoria by writ filed 5 May 2021. 

7The proceeding was initially set down for trial on 7 November 2022.  Shortly before the trial date, the trial was vacated by consent as the parties were not ready for trial.

8Orders were then made in the Supreme Court by Judicial Registrar Baker on 9 December 2022 which, amongst other things, refixed the proceeding for trial on 5 June 2023 (“the second trial date”).

9Judicial Registrar Baker made further Orders on 18 January 2023 timetabling interlocutory steps in advance of the second trial date.

10Next, by summons filed 24 May 2023, the defendant made application to adjourn the second trial date. The proceeding came back before Judicial Registrar Baker on 26 May 2023, who determined that the trial would not be ready to proceed and vacated the second trial date.  The proceeding was re-fixed for trial on 14 August 2023 (“the third trial date”).

11Apparently, a reason relied on by the defendant to vacate the second trial date was the late service by the plaintiff of an expert report from an engineer, Mr Ted Dohrmann, consultant engineer, dated 19 May 2023. 

12Bubbling away in the background of this proceeding had been the contention of the plaintiff that the defendant had failed to make full and proper discovery, although for how long that has bubbled away is a little unclear. 

13The defendant provided an affidavit of documents on 25 May 2023.  It is possible that late discovery may have jeopardised the second trial date, regardless of the late service of Mr Dohrmann’s report, although nothing much turns on that.

14Next, on 5 July 2023 the solicitor for the plaintiff emailed the solicitor for the defendant and sought further discovery “as a matter of urgency”.  The respective solicitors then exchanged several emails about the issue of discovery. 

15Next, Ierodiaconou AsJ made Orders on 7 July 2023 on the return of a summons in respect to the plaintiff’s request for a further view of the defendant’s premises.  The formal Order was that the summons was dismissed.  A further view was disallowed.  Her Honour noted in ‘Other Matters’ in the Orders that: “There is a real prospect that the trial date of 14 August 2023 will be jeopardised if there is a further expert report”. It does not appear that the issue of discovery was raised with her Honour.

16The solicitor for the plaintiff then again raised the issue of discovery by a formal letter to the solicitor for the defendant on 26 July 2023.

17On 3 August 2023, the solicitor for the defendant replied formally by letter objecting to the provision of further discovery.

18Next by way of substantive steps, on 4 August 2023, at a final directions hearing, Judicial Registrar Baker made Orders, inter alia, confirming the third trial date of 14 August 2023.  In ‘Other Matters’, Judicial Registrar Baker noted that:

“Counsel for the plaintiff indicated that the plaintiff may issue a summons in relation to an ongoing discovery dispute in the coming days.  ...

The parties otherwise advised they were ready for trial and there were no outstanding interlocutory steps.”

19In the proceeding before me, counsel for the defendant said it had always – including on 4 August 2023 – asserted that it had complied with its discovery obligations.  

20The plaintiff then filed a summons on 8 August 2023 for Orders requiring the defendant to make discovery of certain documents.

21The plaintiff’s discovery summons was listed before Judicial Registrar Baker on 11 August 2023, when there was apparently some discussion regarding the discovery summons, although I have not seen any transcript (there may be no such transcript) and there was no formal ruling dealing with it.

22On 11 August 2023, Judicial Registrar Baker advised the parties that there was not currently a Supreme Court Judge available to hear the trial commencing Monday, 14 August 2023, and it was proposed that the matter be transferred to the County Court pursuant to Part 6 of the Courts (Case Transfer) Act 1991. The parties consented to that course of action, and his Honour Keogh J made formal Orders to facilitate the transfer.

23On 11 August 2023 Judicial Registrar Baker informed the parties that the plaintiff’s discovery summons would be determined by the trial Judge.

The trial listed for 14 August 2023 is adjourned

24The matter then came on for trial before me, to be heard as a jury trial commencing on 14 August 2023.  At that stage there also remained the outstanding discovery summons. 

25However, it soon became apparent on 14 August 2023 that whatever the status of the defendant’s discovery, the plaintiff, in lay terms, did not have his house in order.

26First, after the proceeding was before Judicial Registrar Baker on 11 August 2023, and after Keogh J made Orders to transfer the proceeding to the County Court, the plaintiff served a supplementary report from Mr Ted Dohrmann, engineer dated 11 August 2023.  That report referred to a letter of instruction to him dated 3 August 2023 as well as photographs and other documents that had been provided to him.

27The supplementary report from Mr Dohrmann was obviously commissioned the day before the final directions hearing.  The plaintiff was always going to be required to exchange that report.  At the very least the late service of a further report from Mr Dohrmann was going to delay the commencement of the trial, or as forewarned by Ierodiaconou AsJ, jeopardise the trial proceeding.

28I consider it unsatisfactory, on the one hand, to commission a supplementary expert report the day before a final directions hearing and yet on the other hand, to inform the Court that the matter was ready for trial.

29It must have been no surprise then to the plaintiff (or his lawyers) that on 14 August 2023 the defendant raised as an issue the late service of the further report from Mr Dohrmann. 

30Equally, it must have been no surprise that the defendant also raised as an issue the documents provided to Mr Dohrmann as referred to in his supplementary report, and whether the plaintiff had complied with his discovery obligations.  I was informed by senior counsel for the defendant that not all photographs had been discovered, and those that had been discovered were in a format that did not enable the defendant to understand when they were obtained, or how they related to the plaintiff’s claim.  Senior counsel for the plaintiff advised the Court that the photographs had been emailed to the defendant on 2 August 2023, but perhaps not all the photographs had been emailed.

31Next, in the context of discussions with counsel about Mr Dohrmann’s report and the further photographs, and the pleaded case, it became clear that the plaintiff’s statement of claim was deficient.  Senior counsel for the plaintiff accepted that it may require some “minor revision” before the trial proceeded.

32Against that backdrop, the proceeding was adjourned to 15 August 2023 substantially to enable the plaintiff to get his house in order, and with the issue of discovery still unresolved.  While no formal Orders were made, I indicated that the parties were to exchange any further schedule for discovery and the plaintiff was to prepare and serve a proposed amended statement of claim. 

33On 15 August 2023 the proceeding came back before me.  By then the plaintiff had provided a proposed further amended statement of claim that went beyond a “minor revision”.  It substantially reshaped how the case was put.  He also provided a further affidavit of documents.  In those circumstances, the defendant made application for the trial to be adjourned, which was an application that could not be resisted. 

34The trial was adjourned and re-listed for the next available date, which was 27 August 2024.

35On 15 August 2023 I indicated that I would disallow the supplementary report from Mr Dohrmann on the basis that it failed the criteria for expert evidence in accordance with s79(1) of the Evidence Act 2008.

36On 15 August 2023 I reserved the question of the costs thrown away by reason of the adjournment of the trail to a directions hearing on 1 September 2023.  A further timetable was Ordered, to provide for the exchange of amended pleadings and for the parties to make discovery by 1 November 2023.

37Pausing, to some extent the further timetabling Orders now render otiose the plaintiff’s summons for further discovery, although there was no formal order made dealing with that summons. 

38The County Court Civil Procedure Rules 2018,[1] provide for discovery to be made after the close of the pleadings. As things now stand the pleadings are not yet closed.  Regardless, the broad principle that underpins the obligation to make discovery is that the issues raised by the pleadings are relevant to determine if a class of documents are to be discovered.  The adjournment has caused a reset of the timetable for discovery.  The defendant will now need to consider its discovery obligation in the context of the current pleaded case.

[1]        R19.02(1)

The orders sought

39Further, by the Orders made 15 August 2023, I Ordered that within 14 days each party was to file a minute of the cost Orders sought, together with any affidavit or written submissions in support.

40Next, in accordance with the Orders, the defendant filed written submissions in respect to the reserved question of costs on 29 August 2023.  The plaintiff filed written submissions on costs and a supporting affidavit and other documents on 31 August 2023.

41The issue of costs was the subject of brief oral submissions on 1 September 2023.  Each side indicated that most of the submissions were as per the written submissions.

42I have considered the written and oral submissions and supporting material for the issue of costs thrown away by reason of the adjournment.

43The defendant seeks an Order that the plaintiff pay the defendant’s costs, including counsel’s fees, thrown away by reason of the adjournment.  It submitted that the adjournment “was entirely the plaintiff’s making”.

44The plaintiff submitted that the adjournment was due to the conduct of both parties “substantially and to a similar degree” and that the appropriate Order is that the costs of the adjournment be costs in the proceeding.

Legal principles

45Neither party made specific submissions regarding the applicable legal principles regarding costs, in circumstances where I consider them to be well-known and understood. 

46There is no dispute that the Court is vested with a wide discretion in respect to the appropriate order to make.[2]  Or, as Lloyd LJ said in Taylor v Pace Developments Ltd:[3]

“There is only one immutable rule in relation to costs, and that is that there are no immutable rules.”

[2]County Court Act 1958, s78A; Rule 63A.02.

[3][1991] VCC 406.

47In this proceeding I am dealing with the question of costs following the adjournment of a trial, but the principles remain broadly the same: namely, after a consideration of all relevant circumstances, what is the appropriate Order to make?

48During oral submissions I considered whether the issue of the trial costs thrown away should be referred to the Costs Court.  The plaintiff subsequently indicated he would consent to the Costs Court determining this issue.  The defendant urged me not to refer the current cost dispute to the Costs Court. 

49Upon reflection, I consider that I am as well placed as the Costs Court to deal with the issue, having heard some argument now over three days.

Consideration

50The plaintiff’s written submission acknowledged that there was some fault on his part that contributed to the adjournment.  As he said in summary:

“Given that the conduct of both parties (and to a substantially similar degree) has caused the adjournment, the appropriate order would be that costs be in the proceeding.”[4]

[4]Plaintiff’s submissions as to costs thrown away, dated 30 August 2023

51I disagree.

52First, when the Supreme Court was informed that the plaintiff was ready to proceed to trial, save for the possibility of a summons regarding “an ongoing discovery dispute”, the plaintiff must have known that Mr Dohrmann had been retained to provide a supplementary report and that thus far undiscovered documents had been provided to Mr Dohrmann. 

53Almost inevitably, the production of the supplementary Dohrmann report and the previously undiscovered photographs would have delayed or prejudiced the trial.  The plaintiff (or his solicitors) flew dangerously close to deliberately misleading Judicial Registrar Baker.  He must have known that his house was not in order.  He chose to leave the discovery issue hanging.  He must have known that his own discovery was incomplete.  It should have been known that his pleaded case would need amendment and re-working before a trial could take place.  If those matters had been raised with Judicial Registrar Baker on 4 August 2023, then I consider the probability is that the trial date would have been vacated.

54Second, as mentioned, it became clear on 14 August 2023 that the plaintiff’s pleading was not one upon which he could proceed to trial.  The amendment of his pleading was necessary and in my consideration that, of itself, was a reason for the trial to be adjourned.  It went beyond a “minor amendment”. The defendant was entitled to consider the amended pleading, provide a defence, and seek necessary instructions, including instructions about discovery.

55Third, the issue of discovery remains outstanding.  It is not one that I have been asked to rule on, although both sides have spoken at length about it.  The plaintiff maintains the defendant’s discovery is deficient.  The defendant maintains that it has made full discovery.  I have not heard specific argument to decide where the truth lies about that.

56Regardless, if the plaintiff considered the defendant’s discovery to be so deficient that he could not proceed to trial, then he should have agitated that issue in advance of the trial date.  In his written submission in respect to the costs thrown away, he said that:

“The defendant’s repeated failure to make proper discovery was, by the hearing date, bound to result in an adjournment.”

57Next, the plaintiff’s solicitor, Mr Shaun Marcus, swore an affidavit on 31 August 2023 in respect to the question of costs. Mr Marcus maintained that various categories of documents had not been discovered by the defendant.  Mr Marcus said that the plaintiff agreed the matter was ready to proceed to trial on the basis that the defendant would comply with its discovery obligations prior to the matter proceeding. 

58Mr Marcus asserted that had the plaintiff received appropriate further discovery, even days prior to the hearing, then the matter would have been capable of proceeding.  He said that when it became apparent that the defendant would not discover any further documents, an application was made to the Court, being the summons returnable 11 August 2023.  But Mr Marcus does not go so far to say that late discovery would have inevitably caused the trial to be adjourned. In that regard his evidence is hardly compelling for a conclusion that the trial was adjourned because of a failure by the defendant to make proper discovery.

59But more relevantly, I consider that the affidavit from Mr Marcus does not engage fully with the issues of the plaintiff’s failure to make full discovery or to ensure the pleading was fit for purpose, and how those matters contributed to the adjournment.  It simply sets out that the plaintiff came into possession of photographs but does not say when that occurred.  It ignores the issue of the supplementary report from Mr Dohrmann.  It ignores the amended pleading.

60Assuming for the purpose of this Ruling, but without deciding, that the defendant’s discovery was deficient, there must have always been a risk that proper discovery would result in an adjournment of the trial.  At the very least, that should have been brought to Judicial Registrar Baker’s attention on 4 August 2023. 

61At the risk of repetition, I am now asked to consider the issue of costs thrown away by reason of the adjournment.  I have not, and I do not, determine the issue of discovery, beyond the further timetabling Orders that I made.

62This proceeding has had an unsatisfactory procedural history.  An undertaking that a matter is ready to proceed is a serious undertaking.  In my opinion it is one that the plaintiff should not have given to Judicial Registrar Baker on 4 August 2023.  He must have known at that stage that there were so many moving parts in his own trial preparation that would likely jeopardise the trial date, which is essentially what has now occurred. If he complied with the previous Orders the trial may have proceeded in circumstances where the defendant has at all times asserted that it had discovered all relevant documents.

63In short, the reason that the trial scheduled for 14 August 2023 could not proceed was the fault of the plaintiff.

64The defendant seeks an Order that the plaintiff pay its costs thrown away, including counsel’s fees, by reason of the adjournment.

65In my view, broadly, that is the appropriate Order to make.

66But there is still the outstanding issue of the plaintiff’s discovery summons and of costs associated with that summons.  While it has not been determined, the practical reality is that the new timetable has overtaken that summons.  It may be that the new timetable reveals more about the issue of discovery, tempered by the fact that the amended statement of claim will need to be considered if there is further discovery by the defendant.  In the circumstances it seems appropriate to me to dismiss the plaintiff’s discovery summons but to reserve the costs of that summons.

67Accordingly, subject to either party wishing to be heard in respect to the costs of the summons, the Orders that I consider appropriate and that I propose to make are:

1.In respect to Order 14 of the Orders made 15 August 2023:

a.the plaintiff is to pay the defendant’s costs thrown away by reason of the adjournment of the trial on a standard basis, including the costs of 14 and 15 August 2023, with such costs to include the costs of senior and junior counsel for the defendant, and to be assessed by the Costs Court in default of agreement.

2.The plaintiff is to pay the defendant’s costs on a standard basis associated with the preparation of the directions hearing on 1 September 2023, including counsel’s fees, to be assessed by the Costs Court in default of agreement.

3.There be a stay on the payment of such costs until further Order or the conclusion of the proceeding.

4.The plaintiff’s summons dated 8 August 2023 is dismissed.

5.The costs of the plaintiff’s summons and the costs of 11 August 2023 are reserved.