McKean Park (a firm) v Centra Australia No 1 Pty Ltd (No
[2011] VCC 1518
•30 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-06269
| MCKEAN PARK (a firm) | Plaintiff |
| v | |
| CENTRA AUSTRALIA NO 1 PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 November 2011 |
| DATE OF RULING: | 30 November 2011 |
| CASE MAY BE CITED AS: | McKean Park (a firm) v Centra Australia No 1 Pty Ltd (No 3) (Costs Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1518 |
| RULING AS TO COSTS |
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SUBJECT – COSTS for third-party discovery.
CATCHWORDS – Application for third-party discovery – plaintiff informed by third-party that
a claim for privilege taken by the plaintiff over some documents was waived – failure of the
plaintiff to inform the defendant of the waiver – advice of the waiver not given to the
defendant until the commencement of the application for third-party discovery – defendant
claimed that discovery of the documents the subject of the waiver would have obviated the
necessity for the application for third-party discovery – responsibility for the costs of the
application for third-party discovery.
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| APPEARANCES: | Counsel | Solicitors |
| For Suncorp Metway Limited | Ms E Bennett | Allens Arthur Robinson |
| For the Defendant | Mr S Tatarka | Kliger Partners |
| For the Plaintiff | Mr H Curtis | Lander & Rogers |
| HIS HONOUR: |
1 The purpose of this Ruling is to finally determine the question of costs of the Summons filed by Centra seeking third-party discovery from Suncorp.
2 This Ruling must be read in the context of the two previous Rulings which I handed down relevant to the saga of discovery in which there has been a three-way contest between the plaintiff, Suncorp and Centra.
3 It occurred to me on the occasion when I handed down my last Ruling relevant to third-party discovery that Suncorp had given instructions to the plaintiff that it had waived the previously asserted claim for privilege over a number of documents. I referred specifically to the relevant correspondence which discloses that waiver in paragraphs 21 to 22 of my last Ruling.
4 In paragraph 23 of my previous Ruling, I flagged the issue which I am now endeavouring to determine, and that is, that the letter from Allens Arthur Robinson, solicitors for Suncorp, informing the plaintiff of the waiver is dated 26 October 2011. It is just over two weeks prior to the hearing of the third- party discovery application heard by me on 14 November 2011.
5 Both Mr Block (solicitor for Centra) and Ms Bennett made submissions on 21 November 2011, when I handed down my last ruling, regarding the failure of the plaintiff to communicate the waiver to Centra for the purpose of it perusing those documents to determine whether the discovery of those documents would have obviated the necessity for the third-party discovery application.
6 It occurred to me that the plaintiff might bear some responsibility for the costs of the third-party discovery application which led me to make the order on 21 November 2011 reserving the question of the party which should pay the costs of the third-party discovery application, requiring Centra to serve a copy of my ruling and a copy of the order on the plaintiff forthwith, and setting a return date for submissions by the plaintiff, Suncorp and Centra for 28 November 2011 at 10.00 am.
The Adjourned Hearing
7 I was informed by my associate that Mr Tatarka appeared for Centra and Ms Bennett appeared for Suncorp, but that there was no appearance by the plaintiff. By 10.10 am, I entered Court and invited Mr Tatarka and Ms Bennett to commence their submissions. At 10:15 am, Mr Curtis entered the Court and announced his appearance for the plaintiff.
8 I informed Mr Curtis of the issue on which I expected submissions to be made, and invited him to indicate whether he was in a position to have the matter proceed, or if he wanted to make an application of some kind, and perhaps to have the application adjourned. He indicated to me that he was content to have the matter proceed.
9 I gathered from some of the submissions made by Mr Curtis that he was not entirely abreast of what had occurred at the time I handed down my last Ruling and subsequently. However, I was informed by Ms Bennett that a solicitor from Lander & Rogers was present in Court during the hearing of the third-party discovery application who had requested copies of the affidavits relied on by the parties in the application, and I was informed by Mr Tatarka that Mr Curtis had spoken to Mr Block in the week prior to 28 November 2011.
10 Mr Tatarka submitted that because of the relationship between the plaintiff and Suncorp being so inextricably bound up, that Suncorp should not get its costs. In the alternative, he submitted that the documents the subject of the waiver had been discovered by the plaintiff. He submitted that he had perused those documents and was of the opinion that they were the very documents which Centra was after in the first place and which satisfied its pursuit of the plaintiff and Suncorp for discovery. Lastly, he submitted that had those documents been discovered in a timely way, it would have obviated the necessity for the third-party discovery application to proceed. He made an application for the plaintiff to pay the costs of both Centra and Suncorp.
11 Ms Bennett submitted that Suncorp had succeeded and that it should follow that it should have its costs paid by the plaintiff. It seemed to me that there could be no question about that.
12 Furthermore, Ms Bennett submitted that I should doubt the position of Centra that the documents the subject of the waiver would have led to the application for third-party discovery being discontinued. She did not make that submission intending to cast any aspersion on Mr Tatarka, but she referred me to the fact that the application for third-party discovery sought hundreds of documents, not the number which were the subject of the waiver.
13 Alternatively, Ms Bennett joined with Mr Tatarka that, if I accepted Centra’s assessment that the documents the subject of the waiver were other documents which Centra had been seeking all along, then the plaintiff should pay Suncorp's costs.
14 Mr Curtis adopted the submission made by Ms Bennett of a claim for hundreds of documents was really what Centra was after and that the provision of the documents the subject of the waiver should not be accepted by me as sufficient to have led Centra to discontinue the application to third- party discovery if those documents had been provided in a timely way to Centra.
Disposition
15 What is clear to me is that Centra has employed the tactic of using a subpoena and then third-party discovery to apply pressure on the plaintiff and Suncorp to obtain as many documents as those procedures could produce.
16 I accept the submission made by Mr Tatarka that, having perused the documents the subject of waiver, that they are all the documents which Centra wants in order to make its case against the plaintiff. I do not accept the submissions made by Ms Bennett and Mr Curtis that the sheer volume of documents initially sought undermines the submission made by Mr Tatarka.
17 The plaintiff must have known that Centra was pursuing it and Suncorp for discovery, and that if more documents were discovered, it would inevitably go to extinguishing that pursuit. To have held off in discovering the documents for which the assertion of privilege had been waived was careless and a failure to discharge its obligation to make discovery in the setting of the pursuit by Centra of both the plaintiff and Suncorp.
18 There was nothing in the submissions of Mr Curtis which has persuaded me that the plaintiff should bear responsibility for the application for a third-party discovery proceeding when it could have been discontinued if the documents the subject of the waiver had been discovered to Centra in the two-week period when it could have taken that step.
19 For the foregoing reasons, I order that the plaintiff pay the costs of both defendant and Suncorp to be assessed by the Costs Court, to be taxed in default of agreement.
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