JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	30 June 2020
CASE MAY BE CITED AS:	Moore v Clifforth
MEDIUM NEUTRAL CITATION:	[2020] VSC 396

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COSTS – Discontinuance – Application for preliminary discovery under r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Application abandoned after plaintiff issued substantive proceeding – Plaintiff applying for leave to discontinue with no order as to costs – Application for preliminary discovery flawed from the outset – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 32.05, 25.03, 25.05 and 63.15 – Soteriadis v Nillumbik Shire Council [2015] VSC 363 applied.

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APPEARANCES:

(By written Submission)

Counsel

Solicitors

For the Plaintiff

Ms V Plain

Slater & Gordon Lawyers

For the First Defendant

Mr S Clement

DWF (Australia)

HIS HONOUR:

Introduction

The plaintiff (Dr Moore) seeks leave to discontinue this proceeding against the first defendant (Dr Clifforth) under r 25.03 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), and seeks that Dr Clifforth bear his own costs. The issue is as to the costs, and whether or not Dr Moore should pay Dr Clifforth’s costs and if so on what basis, standard or indemnity.[1]
[1]The application is supported by the affidavit of Robert Auricchio made 5 June 2020 and filed on 9 June 2020 (Auricchio affidavit).

For the following reasons, Dr Moore should pay Dr Clifforth’s costs on an indemnity basis.

Background

By Originating Motion filed on 10 December 2019, Dr Moore sought preliminary discovery under order 32.05 of the Rules from three defendants, Glenelg Surgical Clinic as the first defendant, Dr Clifforth as the second defendant and Dr Uvan Naidoo as the third defendant.

After Dr Clifforth filed his appearance, Dr Moore issued a summons for the relief set out in the originating motion. The summons came on for hearing on 17 February 2020, and was treated as a summons for directions. The Associate Judge ordered that the first defendant’s name be amended to ‘Western District Health Service’ (WDHS), that Dr Moore should file an amended originating motion, that any additional affidavit in support be filed by 11 March and that the matter was otherwise adjourned to 4 May 2020.

On the 16 March an Amended Originating Motion was filed. Oddly, the name of the Glenelg Surgical Clinic was simply deleted, so that Dr Clifforth became the first defendant, and WDHS was made the third defendant. In consequence, there is some confusion in the filed materials about who is what defendant. The WDHS filed an appearance on 18 March 2020. Dr Naidoo has never filed an appearance and is for that reason not considered further in these reasons.

On 1 May 2020, I ordered…

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.

Continue reading Moore v Clifforth

Details

AGLC: Moore v Clifforth [2020] VSC 396
Case: [2020] VSC 396
Decision Date: 30 June 2020

CaseChat Overview and Summary

In the matter of Moore versus Clifforth, the court was called upon to address an application for preliminary discovery and the subsequent application for leave to discontinue without any order as to costs. The plaintiff, Moore, sought to obtain certain documents from the defendant, Clifforth, under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The application for preliminary discovery was abandoned after Moore issued a substantive proceeding, and subsequently sought leave to discontinue the application with no order as to costs.

The legal issues before the court involved the interpretation and application of rules 32.05, 25.03, 25.05, and 63.15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), as well as the principles set out in the case of Soteriadis v Nillumbik Shire Council [2015] VSC 363. The court had to determine whether the application for preliminary discovery was flawed from the outset and, if so, what the appropriate course of action was in relation to the application for leave to discontinue without any order as to costs.

The court found that the application for preliminary discovery was indeed flawed from the outset. The court held that the plaintiff's decision to issue a substantive proceeding effectively rendered the preliminary discovery application moot. Furthermore, the court considered the principles outlined in Soteriadis v Nillumbik Shire Council [2015] VSC 363 and determined that the plaintiff was not entitled to leave to discontinue without any order as to costs. The court concluded that the defendant should be awarded costs associated with the flawed application for preliminary discovery.

The court ordered that the plaintiff's application for leave to discontinue without any order as to costs was dismissed, and that the defendant was to be awarded costs associated with the preliminary discovery application in accordance with the rules and principles discussed above.

Orders