Jones v Aulich Pty Ltd
[2022] ACTSC 26
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jones v Aulich Pty Ltd |
Citation: | [2022] ACTSC 26 |
Hearing Dates: | On the papers |
DecisionDate: | 22 February 2022 |
Before: | Elkaim ACJ |
Decision: | See [38] |
Catchwords: | CIVIL LAW – COSTS – operation of r 651 of the Court Procedures Rules 2006 (ACT) – where both parties argue that costs should be made in their favour – each party to pay its own costs of the proceedings – application for joiner of separate parties – application dismissed – proceedings dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 651 |
Cases Cited: | Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 |
Parties: | Daniel Jones ( Plaintiff) Aulich Pty Ltd ( Defendant) |
Representation: | Counsel N Oram ( Plaintiff) E Taylor ( Defendant) |
| Solicitors Ken Cush & Associates ( Plaintiff) Aulich Civil Law ( Defendant) | |
File Number: | SC 56 of 2021 |
ELKAIM J:
These proceedings were commenced by the filing of an originating application on 18 February 2021. It was soon followed by an amended originating application, filed on 9 March 2021.
Under the amended document, the plaintiff sought preliminary discovery from the defendant pursuant to r 651(b)(i) of the Court Procedures Rules 2006 (ACT). Alternatively, the plaintiff requested production, to his solicitors, of the documents listed under proposed Order 1A of the application.
The history behind the application is set out in the affidavit of the plaintiff, affirmed on 9 February 2021 and the affidavit of Mr Samuel Tierney, affirmed on 17 February 2021. Mr Tierney is the plaintiff’s current solicitor and is an “Executive Counsel” in the firm of Ken Cush & Associates.
The reason the plaintiff consulted Mr Tierney concerned a potential civil suit against the Australian Federal Police (the AFP) arising from criminal proceedings which came to be abandoned, but only after the plaintiff had spent some four months in custody, while on remand.
The plaintiff had retained the defendant in the criminal proceedings and had paid it some $360,000 in pursuit of his defence. The plaintiff is anxious to recover this sum and also to be compensated for the “significant distress and anxiety” which he endured as a result of the criminal investigation and proceedings.
The plaintiff had originally asked the defendant to advise on this recompense. Certain actions were taken by the defendant, including service of a Personal Injury Claim notification on the AFP. Proceedings seeking the disclosure of documents were also apparently commenced, but later resolved.
After reviewing the documents it had received, the defendant advised the plaintiff that it did not think he had a viable claim against the AFP arising from the tort of malicious prosecution. A Deed of Release was signed by the plaintiff, although he did not retain a sealed copy.
In July 2019, the plaintiff consulted another firm of solicitors in relation to the proposed civil proceedings, namely Armstrong Legal.
The plaintiff consulted his current solicitors in October 2019. Armstrong Legal provided Mr Tierney with the plaintiff’s file.
Mr Tierney also asked the defendant to produce its file of the plaintiff’s matter. There then followed an exchange of correspondence between Mr Tierney and the defendant concerning the documents that the plaintiff says have never been produced but which are in the possession of the defendant. In short, the plaintiff asserted that the file produced to Mr Tierney by the defendant was incomplete.
In addition to correspondence, there were also telephone conversations between Mr Tierney and Mr Aulich. A conversation of 4 August 2020 is set out in an affidavit of Mr Tierney (affirmed on 3 December 2021). The conversation is interspersed with unpleasantries which suggest the participants were not fond of each other. I do not think this conversation, or in fact much else in Mr Tierney’s affidavit, is of assistance on the costs issue.
On 27 April 2021, consent orders were made by McWilliam AsJ to facilitate the location and production of certain documents. These orders are set out at [5] of the affidavit of Ms Gabriella Yeo, affirmed on 28 September 2021. Ms Yeo is a solicitor working with Mr Tierney.
According to Ms Yeo’s affidavit she identified documents that remained ‘missing’. She also identified “an undertaking made by the prospective third defendant with the Commissioner for the New South Police and the Commissioner for the Australian Federal police to not disclose documents in the plaintiff’s file to him”. The “New South Police” presumably refers to the New South Wales Police.
On 15 July 2021, further consent orders were made by McWilliam AsJ directing that the defendant and the prospective second and third defendants produce to the Court the undertakings and “the documents that were produced by the Commissioner for the Australian Federal Police (AFP) and/or the Commissioner for the NSW Police Force (NSW Police)” relating to the undertakings by 28 July 2021.
The prospective second defendant is Aulich Civil Law which is to be distinguished, apparently, from Aulich Criminal Law.
On 29 July 2021, the plaintiff obtained copies of the documents that had been produced pursuant to the 15 July 2021 consent orders and provided them to his solicitors. Ms Yeo reviewed the material and concluded that some documents remained missing. These documents are listed in a letter from Mr Tierney to Aulich Civil Law dated 28 September 2021.
On 21 October 2021, another request was made for the documents. The defendant replied immediately and said that “We have produced exactly what was on our file”.
The parties appeared on 28 October 2021 following which consent orders were made in respect of submissions on costs on 29 October 2021. A number of extensions were then granted on the timetable that had been set.
Although there are no specific orders dealing with the resolution of the application, it is apparent that by 28 October 2021 the substantive issues between the parties had been resolved.
The normal rule in relation to costs is that costs follow the event; in other words, the loser pays the victor’s costs.
Unfortunately, this fundamental rule is difficult to apply in this case. Each side claims to be the winner. Each side says the other side “capitulated”.
The plaintiff’s primary position is that the defendant had possession of documents that it had not produced and it took the filing of the proceedings to ultimately cause the documents to be produced. The plaintiff says that the defendant eventually produced almost 1000 pages of documents following the commencement of the legal action.
Therefore, says the plaintiff, the defendant “surrendered”, making the plaintiff the successful party. The plaintiff continued:
The plaintiff has achieved what he had always sought in the proceeding and, as such, is the “clear winner”. Costs should be awarded accordingly.
‘Not so’, says the defendant. To the contrary it was “the plaintiff who capitulated and acted unreasonably”.
The defendant submits that the proceedings were originally misplaced, having been improperly filed under r 651(b)(i) Court Procedures Rules 2006 (ACT). Once this error was pointed out, submits the defendant, the plaintiff filed an amended originating application to properly describe the orders sought.
The defendant submits that the time taken to reach a resolution of the matter was caused by the plaintiff, by his solicitors, not examining the relevant files in a timely basis, so that when the missing documents were identified, with the assistance of the defendant, the result was as much a product of the assistance rather than any obstruction by the defendant.
The defendant submits that the matter could, and should, have been resolved before proceedings were commenced. As to the plaintiff’s asserted success, the defendant submits:
Any success of the plaintiff in this matter is not in the defendant’s respectful submission, indicative of the plaintiff being justified in commencing the proceeding.
The defendant’s submission on costs is that the plaintiff should pay the costs on an indemnity basis. This was because of the “delinquencies” of the plaintiff; the plaintiff’s case was not suited to r 651, the plaintiff did not accept offers of settlement from the defendant and the plaintiff “attempted unsuccessfully to rectify the problems with the Application resulting in further cost to the parties”.
The primary difficulty with the application of r 651 is that it is a procedure to obtain information from a potential defendant. But in this case, the potential defendant was not this defendant but rather the Australian Federal Police. This issue was at the core of the spirited oral exchange I have referred to above.
In reply, the plaintiff does not seem to deal with the r 651 point. The plaintiff does, however, take issue with the manner in which the documents were provided and his entitlement to those documents. The plaintiff disputes that the defendant had already produced all the documents to which the plaintiff was entitled. To the contrary, says the plaintiff, “the AFP Document (sic) were initially not produced as the defendant’s (sic) asserted that it could not locate the documents. Subsequently, the defendant confirmed that the AFP Documents were in its possession”.
The plaintiff disputes that there were undertakings in place which had prevented the disclosure of some documents.
The plaintiff also says that:
It is not now appropriate to determining (sic) this issue (the undertaking) for the purpose of deciding applications for costs.
I agree with this position but think it extends beyond the question of any undertaking. The parties were asked to make submissions on costs but in doing so have raised a number of issues which the Court is simply not in a position to decide. To bring the matter back to court to have a full hearing on these issues would be a waste of time and costs.
I have come to the view that doing the best I can there is some merit in the arguments of both sides. For example, this was not a case which initially attracted the application of r 651. On the other hand, there seems to have been a degree of reluctance on the part of the defendant to produce the ‘missing’ documents.
Although I have a wide discretion in dealing with costs, I have to try and do justice between the parties. As stated by the High Court in Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 at [2]:
The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires.
I think this result is best achieved by an order that each party pay its own costs of the proceedings.
An ancillary order is also sought in relation to an application for the joinder of separate parties. There seems no dispute that this application should be dismissed.
I make the following orders:
(i)Each party is to pay its own costs of the proceedings.
(ii)The proceedings, together with the Joinder and Jurisdiction Applications filed on 26 March 2021, or otherwise, are dismissed.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim Associate: Claire Paton Date: 22 February 2022 |
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