Gardiner v Forsyth (Ruling No 2)
[2020] VCC 458
•22 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04396
| ANDREW GARDINER | Plaintiff |
| V | |
| ROBERT FORSYTH | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2020 | |
DATE OF RULING: | 22 April 2020 | |
CASE MAY BE CITED AS: | Gardiner v Forsyth (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 458 | |
REASONS FOR RULING
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Subject: COSTS
Catchwords: Costs – Amendment to Statement of Claim – Solicitor ordered to pay
Cases cited: Yarra Australia Pty Ltd and Ors v Oswal [2013] VSCA 337; Ilievski v Zhou [2014] VSC 442
Ruling: The Plaintiff’s Solicitors to pay the Defendant’s Costs arising from amendment
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Porthouse, Solicitor | Monaco Lawyers |
| For the Defendant | Mr A Stevens, Solicitor | Avant Law |
HER HONOUR:
1 In granting the indulgence to the plaintiff that it be permitted to amend his Statement of Claim, I reserved my decision as to who would pay the defendant’s costs arising from that amendment.
2 At the time I delivered my ruling, I required that a copy of my ruling in respect of the amendment application, be served personally on the plaintiff, so that he was made aware of what had occurred and the concerns that the court has regarding the conduct of his solicitors in this matter.
3 Yesterday afternoon, I received the following proposed consent orders from the parties in this proceeding:
1. The plaintiff pay the defendant’s costs thrown away of the adjournment of the trial of five days listed on 12 March 2020 to be agreed or taxed on a standard basis.
2. The plaintiff pay the defendant’s costs thrown away by reason of the Amended Statement of Claim to be agreed or taxed on a standard basis.
3. The plaintiff pay the defendant’s costs of previous directions hearings relating to the adjournment of the trial date and the amendment of the Statement of Claim to be agreed or taxed on a standard basis.
4 As I was concerned as to the basis upon which the plaintiff had come to consent to such orders, given the grounds for the late amendment to the Statement of Claim, I caused my associate to send an urgent email to Monaco Lawyers, the plaintiff’s solicitors, and requested that an affidavit be provided as to the following matters:
(i) whether a copy of my ruling dated 8 April 2020 had been provided to the plaintiff;
(ii) whether the plaintiff understood my ruling; and
(iii) the reasons as to why the plaintiff, and not the plaintiff’s solicitors, had agreed to pay such costs.
5 In response to this request, an affidavit was provided by Mr Anthony Porthouse, a Special Counsel employed with Monaco lawyers. In this affidavit, Mr Porthouse explained that my ruling of 8 April 2020 had not been provided to the plaintiff, but that the plaintiff had been orally advised of my criticisms of Monaco Lawyers.
6 In relation to who should pay the defendant’s costs, Mr Porthouse deposed to the following:
“I explained to the plaintiff the effect of the costs order. I said that I would have Monaco Solicitors pay the costs of the adjourned hearing but I thought he should pay the costs of the amendment because he hadn’t told us about the Somac at the start of the case or when we received the report of Professor Morris. The plaintiff said words to the effect, ‘Yeah that’s OK, as long as it’s all done at the end. I can’t pay them now’.”
7 At the time of the application to amend the Statement of Claim, it was never submitted to me that a basis for this was the plaintiff’s failure to inform his solicitors about a prescription for Somac. To suggest now that that was the reason for the amendment is extraordinary, and, in my view, quite improper and unfair to the plaintiff.
8 As I stated in my previous ruling, a prudent and reasonable solicitor in a medical negligence case would ordinarily obtain expert evidence prior to the service of a Writ or, at the latest, prior to drawing the Statement of Claim to ensure that the plaintiff’s claim was properly made out. There is still no satisfactory explanation from Monaco Lawyers as to why expert medical opinions were not sought in this matter earlier in time.
9 I am satisfied that it was Monaco Lawyers’ failure, not the alleged failure of the plaintiff, to not mention Somac at an earlier time, which was the reason for the substantial amendment to the Statement of Claim at this late stage.
10 The principles relevant to a court exercising discretion in respect of an award of costs against a legal representative were outlined by the Court of Appeal in Yarra Australia Pty Ltd and Ors v Oswal [2013] VSCA 337. It was noted that when a court makes an order under Rule 63.23(1) against a solicitor who has caused costs to be incurred improperly by a failure to act with reasonable competence and expedition, the primary object is not punitive or disciplinary, but compensatory. It is intended to protect a client who has suffered and to indemnify the party who has been injured. As was noted by J Forrest J in Ilievski v Zhou [2014] VSC 442, the scope of this provision does not require serious impropriety or gross negligence - mere negligence is enough.
11 As stated in my ruling, a reasonable solicitor would have sought expert medical opinion prior to drawing the Statement of Claim in a complex medical negligence matter such as this. If that had occurred, then the Statement of Claim would most likely have been prepared in the detailed manner, as is now seen in the recently amended Statement of Claim.
12 In view of the above, I make the following orders:
(i) The plaintiff’s solicitors pay the defendant’s costs thrown away of the adjournment of the trial of five days listed on 12 March 2020 to be agreed or taxed on a standard basis.
(ii) The plaintiff’s solicitors pay the defendant’s costs thrown away by reason of the Amended Statement of Claim to be agreed or taxed on a standard basis.
(iii) The plaintiff’s solicitors pay the defendant’s costs of previous directions hearings relating to the adjournment of the trial date and the amendment of the Statement of Claim to be agreed or taxed on a standard basis.
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