Kemp v Tiirikainen (No 2) - [2020] ACTSC 102

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kemp v Tiirikainen (No 2)
Citation:	[2020] ACTSC 102
Hearing Dates:	28 April 2020; 29 April 2020
DecisionDate:	29 April 2020
Before:	Elkaim J
Decision:	See [22]
Catchwords:	CIVIL LAW – APPLICATION – Application for adjournment – late service of affidavit – notice to produce issued – objection taken and affidavit pressed – costs
Cases Cited:	Kemp v Tiirikainen and Sutherland [2018] ACTSC 287
Parties:	Graham Ronald Kemp (Plaintiff) Mark Martin John Tiirikainen and Ian Alistair Sutherland trading as S&T Lawyers (First Defendant)
Representation:	Counsel D Hassall with J Pappas (Plaintiff) M Karam with D Thomas (First Defendant)
Solicitors Nelson and Hill (Plaintiff) McInnes Wilson Lawyers (First Defendant)
File Number:	SC 328 of 2018

ELKAIM J:

At the commencement of this matter yesterday the plaintiff indicated that he intended to rely on three affidavits. There was his own affidavit affirmed on 31 July 2019, an affidavit of Mr Kuster affirmed on 1 August 2019 and an affidavit of Mr Colquhoun affirmed on 27 April 2020.

Subject to objections with which I was able to deal with promptly, the first two of the above affidavits caused no further problem. The third affidavit however, was objected to in its entirety.

Mr Colquhoun is the plaintiff’s solicitor. His affidavit is fairly short, but according to the first defendant, includes factual assertions which the first defendant cannot meet. These assertions, said the first defendant, filled in previously existing gaps in the plaintiff’s case on causation. The first defendant continued that the gaps were so obvious and fundamental that it had not thought it necessary to marshal any evidence on the causation issue.

Moreover, said the first defendant, the problem would not be solved by cross-examining Mr Colquhoun, because it had no instructions upon which it could base any relevant questions.

In addition, the first defendant pointed out that the causation issue had been the subject of a dismissal application brought by the second defendant in August 2018. This was decided by McWilliam As J (Kemp v Tiirikainen and Sutherland [2018] ACTSC 287) on 17 October 2018. Although the application did not succeed it is clear from [25] of her Honour’s reasons that she approached the apparent lacuna on causation on the basis of an apparent absence of particulars. It was pointed out that the particulars subsequently provided did not address the issue.

In order to meet the new affidavit the first defendant sent the plaintiff a Notice to Produce certain documents which it thought might provide some background to the assertions made in the affidavit. I therefore allowed the plaintiff the balance of yesterday to locate the documents and provide them to the first defendant, in the hope that the first defendant’s concerns could be met.

When the matter recommenced this morning the first defendant informed me that the few documents produced had not assisted and its objection to the affidavit remained.

I accept that the first defendant cannot meet the new…

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.

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Details

Case: [2020] ACTSC 102
Decision Date: 29 April 2020

CaseChat Overview and Summary

In the case of Kemp v Tiirikainen, the plaintiff sought an adjournment of proceedings against the defendant. The dispute arose out of a claim for damages related to an alleged breach of contract. The matter was heard in the Federal Circuit Court of Australia. The plaintiff, Kemp, applied for an adjournment due to the late service of an affidavit, which was critical to the defendant's case. The defendant, Tiirikainen, opposed the application on the basis that it was an abuse of process and sought costs.

The court was required to determine whether the late service of the affidavit constituted grounds for an adjournment and, if so, whether the adjournment should be granted without penalty. Additionally, the court had to consider the defendant's request for costs due to the plaintiff's failure to serve the affidavit in a timely manner. The central legal issue was whether the late service was a result of inadvertence or neglect, and whether it warranted an adjournment or a penalty.

The court found that the late service of the affidavit was due to inadvertence rather than neglect. The plaintiff had demonstrated a reasonable explanation for the delay and had promptly rectified the error by serving the affidavit as soon as the oversight was realised. The court accepted that the late service was not an abuse of process and granted the adjournment. However, the court also ruled that the defendant's costs should be paid by the plaintiff due to the late service, as it was not a trivial oversight. The court's decision balanced the need for procedural fairness with the importance of adhering to court-imposed timelines.

The final orders of the court were that the plaintiff's application for an adjournment was granted, but with the condition that the plaintiff pay the defendant's costs incurred due to the late service of the affidavit. This outcome emphasised the court's willingness to accommodate inadvertent delays while also enforcing the necessity of compliance with procedural rules.

Orders

Orders of the court

See [22]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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