Kuek v Victoria Legal Aid & Anor

[2008] VSC 147

IN THE SUPREME COURT OF VICTORIA Not Restricted

COMMON LAW DIVISION

No. 8337 of 2007

GABRIEL KUEK	Plaintiff
V
VICTORIA LEGAL AID & ANOR	Defendants

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2008
DATE OF JUDGMENT:	24 April 2008
CASE MAY BE CITED AS:	Kuek v VLA & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 147

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PROCEDURE – discovery – costs – Order 77.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P G Nash Q.C. and Mr J F Doherty	Access Law
For the Defendant	Ms D Mortimer SC and Mr R J Harris	Victoria Legal Aid

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HIS HONOUR:

1. The underlying matter, with the merits and resolution of which the court today is not concerned, commenced by originating motion filed on 13 September 2007 with summons thereon and supported by affidavit of the applicant's solicitor affirmed on 13 September 2007.  An amended originating motion was filed on 23 November 2007.  Essentially, the motion seeks Order 56 relief in relation to a decision of the second defendant, the Independent Reviewer, in June 2007, that the first defendant, Victoria Legal Aid, hereafter VLA, granting assistance to an accused person, Ming Fai Kwan by a panel practitioner was correct and should be  confirmed.  The second defendant abides the decision of the court.  The applicant's solicitor is not on the first defendant's indictable crime panel and was not allocated the particular matter.

1. The first defendant sought discovery of certain documents from the plaintiff.  The classes of documents were stated in the summons of the first defendant filed

   
   

   21 November 2007.  In my view the seeking by the first defendant of the named classes of documents was wholly justified.  The plaintiff's affidavit in support of the originating motion referred to the terms of his retainer and to non payment.  The plaintiff failed to discover the documents.  By Order on 23 November 2007 Master Daly ordered the discovery.  Before the Master, both the plaintiff and the first defendant were represented by counsel.  The Master ordered that the plaintiff pay 75 per cent of the costs of the first defendant of the summons.  By notice filed 30 November 2007 the plaintiff appealed from the Master's orders.  Various further steps were taken, notably that Justice Williams on 11 December 2007, upon referral from the Practice Court, stayed parts of Master Daly's Orders and vacated one part.  Costs in that hearing were reserved by Her Honour.  Counsel again appeared.

1. The Listing Master on 29 January 2008 fixed the appeal for 22 April 2008.  The matter came on before me yesterday, 23 April 2008.  At 12 noon the day before, at effectively the 59th minute of the eleventh hour, the plaintiff served on the first defendant an affidavit of discovery affirmed by him on 17 April 2008.  Despite this, there was and is no formal application for discontinuance of the appeal.  Thus the appearance yesterday before me of counsel for the first defendant.  The affidavit served on

   
   

   22 April complies with the Order of Master Daly.  The stay order by Williams J is now otiose.  The first defendant not unnaturally now seeks its costs.  In my view its application is entirely justified.  If the plaintiff wishes to fail in his obligation of discovery and then come good at the last minute, he should bear the cost of this wasteful exercise.  I am unpersuaded that the matter before me should be referred back for determination with the substantive matter.  This is a stand alone matter under Order 77 and the first defendant should not be required to wait further for its costs. 

1. Accordingly, I propose to order that the appeal be dismissed and that the stay of paragraphs 1 and 3 of the orders of Master Daly made on 23 November 2007 ordered by Justice Williams on 11 December 2007 be lifted.

1. I agree with Ms Mortimer in her responsible and fair submission that the costs of each of the parties of 11 December 2007 should be borne by each of those parties.  Otherwise I order that the plaintiff pay the first defendant's costs of the appeal including the appearance of yesterday and today. 

1. Counsel, I will settle that overnight whenever it's provided to me and provide it to you.  No further orders sought?

1. COUNSEL:  No Your Honour.

1. HIS HONOUR:  I wish you well for the weekend.  I will leave the Bench.

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