Law Institute of Victoria v Maric

[2008] VSC 613

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.  8323 of 2005

LAW INSTITUTE OF VICTORIA	Plaintiff
v
LYDIA MARIC & ANOR	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2008
DATE OF RULING:	3 September 2008
CASE MAY BE CITED AS:	LIV v Maric & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 613

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Randall	Law Institute of Victoria
For the Respondent	Mr M Roberts	Michael Benjamin & Associates

HIS HONOUR:

1. This matter comes back before me in consequence of disagreement between the parties as to the basis on which the inquiry as to damages envisaged by my order of 3 October 2006 should take place. 

1. Mr Benjamin has sworn an affidavit of 15 August 2008, exhibiting correspondence relating to these issues passing between the solicitors for the parties.  That affidavit incidentally summarises the defendant's claim to damages being:

(a)       professional fees in the sum of $85,200;

(b)      travelling expenses in the sum of $3537;

(c)       together with e-tag charges of $928;

(d)      loss of time, $23,936;

(e)       interest.

Any difference between tax costs incurred as a result of the interlocutory injunction originally granted in the matter and costs actually incurred. 

1. The Law Institute of Victoria now seeks discovery, with respect to the basis of such claims.  It is not satisfied with the documentation exhibited to Mr Benjamin's affidavit, which includes a schedule of files in which s.23 statements were prepared and copies of tax invoices rendered in respect of services supplied by his firm.  Mr Roberts asserts on behalf of the defendants that discovery will give rise to issues of legal professional privilege. 

1. I am not persuaded that this is necessarily so, but, if this is to be a critical issue, it will have to be properly argued on the basis of an affidavit  of documents identifying the privilege claimed.  I'm not prepared to dispose of this issue on the basis of the bare assertions of counsel from each end of the Bar table this morning. 

1. In my view, although the costs of discovery may well be totally disproportionate to the benefit, the Law Institute of Victoria is in principle entitled to seek it.  On the other hand, given the underlying basis of the inquiry, the defendants should not be put to cost with respect to the process, or indeed with respect to other matters incidental to the proper conduct of the inquiry as to damages.  Accordingly, I propose to order discovery generally in accordance with the third paragraph of the Law Institute of Victoria's letter of 23 July 2008, and that such discovery be given within 28 days, conditional upon the payment by the Law Institute of Victoria in the first instance to the defendants of the sum of $20,000 by way of an advance in respect to the costs of the inquiry.

1. I will further order that the matter be referred to mediation in the terms of the usual order in the commercial and equity division of this court, such mediation to take place within three months.  I will reserve liberty to apply for further directions at 9.30 a.m. on the first Friday in December, and I will reserve liberty to apply otherwise generally.  Mr Roberts has also sought an order this morning for a sum of costs in the proceeding generally, relating, as I understand it, both with respect to the costs of the interlocutory steps in the proceeding, the trial before me, and the unsuccessful appeal to the Court of Appeal. 

1. I am not prepared to make such an order today, but I will reserve liberty to him to revive that application following the mediation as may be necessary.  Lastly I want to observe that the potential costs of the inquiry seem to me to be potentially quite disproportionate to the sum which the defendants are likely to recover.  Ultimately, given the nature of the inquiry, this is a matter with which the Law Institute of Victoria should be particularly concerned.  Accordingly, this is a matter particularly suitable to resolution by mediation.  Now, the only matter I haven't dealt with is the costs of this morning, and I reserve those costs. 

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