Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd (in Liq) [No 4] - [2018] WASC 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST -v- JEAN MAURICE PTY LTD (IN LIQ) [No 4] [2018] WASC 202
CORAM:   KENNETH MARTIN J
HEARD:   4 MAY 2018
DELIVERED          :   4 MAY 2018
PUBLISHED           :   2 JULY 2018
FILE NO/S:   CIV 2935 of 2016
BETWEEN:   PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST
Plaintiff

AND

JEAN MAURICE PTY LTD (in liq)
First Defendant

SANCHO BAKERY PTY LTD
Second Defendant

FRANCK DUROLEK
Third Defendant

BELINDA DUROLEK
Fourth Defendant

Catchwords:

Practice and procedure - Expert report - Late filing - Case management orders - Costs

Legislation:

Nil

Result:

Extension of time application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr G R Ritter QC & Mr A Vinciullo
First Defendants	:	No appearance
Second Defendant	:	Mr C Williamson & Ms J M Somerville
Third Defendant	:	Mr C Williamson & Ms J M Somerville
Fourth Defendant	:	Mr C Williamson & Ms J M Somerville

Solicitors:

Plaintiff	:	HopgoodGanim Lawyers
First Defendants	:	No appearance
Second Defendant	:	ABMS Lawyers
Third Defendant	:	ABMS Lawyers
Fourth Defendant	:	ABMS Lawyers

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Pier (WA) Pty Ltd As Trustee For Isandi Trust v Jean Maurice Pty Ltd [2018] WASC 22
Pier (WA) Pty Ltd As Trustee For Isandi Trust v Jean Maurice Pty Ltd [No 2] [2018] WASC 23
Pier (WA) Pty Ltd As Trustee For Isandi Trust v Jean Maurice Pty Ltd [No 3] [2018] WASC 24

KENNETH MARTIN J:

(These reasons were delivered extemporaneously on 4 May 2018 and have subsequently been edited from the transcript.)

I am dealing urgently this afternoon with a chambers summons of 1 May 2018 of the second, third and fourth defendants seeking relief in a number of respects in terms of par 1 to par 6 of that summons. Most materially, par 3 of the summons seeks that hearing dates currently fixed for Monday, 7 May 2018 and Tuesday, 8 May 2018 be vacated. This is being sought to enable an expert report of 3 May 2018, that has only just emerged from the second, third and fourth defendants' expert, to be relied upon.
The application by par 3 of the defendants' application for the hearing dates to be vacated, is wholly untenable. Indeed, it was not even seriously pressed when the matter was called for argument on 4 May 2018.
More relevant is relief as sought under par 2 of the summons seeking an extension of time to file the expert report of 3 May 2018.
That all arises in circumstances where I had previously ordered that any materials to be relied upon by the defendants at what is an assessment of damages hearing be received by 16 April 2018. It is plain to all that 3 May 2018 is a long way past 16 April 2018.
I have now been taken through numerous lawyer communications in Mr Vinciullo's affidavit affirmed 2 May 2018 (for the plaintiff) that have passed between the lawyers on this issue. The lawyers for the plaintiff have consistently indicated they would not agree to any non‑compliance with the timetabling orders that I previously made.
For the defendants, it is equally clear that ABMS Lawyers' letter of instruction to Mr Monaghan to prepare his report, at page 4, was a very casual instruction indeed - in terms of a brief to him that his report was only required to be filed 'a couple of days before 7 and 8 May 2018': see page 59 of Mr Monaghan's report of 3 May 2018. The instruction to Mr Monaghan was abundantly wrong ‑ in terms of it misrepresenting timetabling orders I had previously made. As mentioned, I had specifically ordered that all materials were to be filed and served by the defendants by 16 April 2018. I did that on 22 March 2018, when Mr McIntyre SC had appeared for the second, third and fourth defendants. Mr Vinciullo appeared for the plaintiff. The position could not have been more clear as regards timelines. Yet it was ignored.
In proceeding to fix an assessment of damages hearing on 7 and 8 May 2018, I gave the plaintiff an opportunity to file any responsive materials by 23 April 2018. In other words, as is customary in a commercial list, I ordered the defendants' evidentiary material to be received by mid‑April and correlatively allowed the plaintiff a reasonable opportunity to digest that material and to respond if necessary by 23 April 2018.
My timetable has since been defeated by ABMS Lawyers' instructions of such a casual nature to their proposed accounting expert Mr Monaghan. That warrants adverse comment and a reprimand to those who instructed Mr Monaghan in such casual terms ‑ contrary to my timetabling orders of 22 March 2018.
Nevertheless, what looms for the assessment hearing is an important and serious exercise in terms of calculating the plaintiff's damages (if any). The defendants' liability is now established on the basis of my springing orders of 7 September 2017, which 'sprang' on 28 September 2017.
The springing orders which I issued in September 2017 are the subject of my reasons in Pier (WA) Pty Ltd As Trustee For Isandi Trust v Jean Maurice Pty Ltd [2018] WASC 22, Pier (WA) Pty Ltd As Trustee For Isandi Trust v Jean Maurice Pty Ltd[No 2] [2018] WASC 23 and Pier (WA) Pty Ltd As Trustee For Isandi Trust v Jean Maurice Pty Ltd [No 3] [2018] WASC 24. Those reasons were delivered ex tempore at the time, and were then revised and published on 25 January 2018. They explain a bizarre tale leading up to those orders.
Clearly, much work and expenditure has now been done and incurred by an accounting professional culminating in the preparation of Mr Monaghan's report for the second, third and fourth defendants. I have had almost no opportunity to date to digest this late arriving report of 3 May 2018 in any real detail. The same would go for the plaintiff's lawyers. I also assess the defendants' lawyers' non-service of the late report on the plaintiff's lawyers as soon as it was received by them, as completely unacceptable. The report was filed at the court yesterday electronically, but for some reason not sent to the plaintiff's lawyers.
Not to serve the late report upon the plaintiff's lawyers until this morning at 9.30 am is conduct I find, frankly, inexplicable and inexcusable. The plaintiff's lawyers ought to have been told immediately of the arrival of the late accounting expert's report. They should have been provided a hard copy, if not a soft copy, as a matter of urgency as soon as possible. Why that was not done when it was filed at the court indicates to me a distortion of priorities, not to mention an unacceptable lack of courtesy.
Nevertheless, this court exists to administer justice between parties on an even‑handed basis notwithstanding the faults of their lawyers. I am more than alive to the High Court's observations in civil litigation that justice cuts two ways: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. What can be done here that is fair?
Since the court can accommodate it from an availability perspective and due to a most reasonable and co‑operative stance by senior counsel for the plaintiff, it remains feasible for me to hear the non‑expert evidence of all the non‑expert witnesses across what will be, I think, a full hearing timetable across 7 and 8 May 2018. This is so even in circumstances where the main non‑expert principal protagonist witness for the plaintiff, Mr Isak Buitendag, is now in the course of travelling from Kazakhstan in order to arrive for that exercise.
I assess that justice can still be afforded to all sides, subject to considerations of costs, if I order that there be an extension of time for the second, third and fourth defendants to file the late expert report of Mr Monaghan by extending time to 4 May 2018 for it to be filed and served. I emphasise 'served' - as this expert report always should have been.
Fortuitously, I now have just had Wednesday, 23 May 2018, become available. That day will lend itself to a concurrent receipt of the expert evidence of both accounting experts. The experts may have their respective reports identified and tendered, questions may be directed expert‑to‑expert and then cross‑examination by counsel or by me concerning their respective reports on damages may ensue.
I will, therefore, extend time to 4 May 2018 for the receipt of Mr Monaghan's report to be regularised. That is the extent of the extension of time that I will allow in terms of the defendants' expert evidence for the assessment of damages exercise.
Axiomatically, I do not vacate the fixed dates for the assessment of damages hearing. Those dates will be applied to the receipt and cross‑examination of all of the lay and non‑expert evidence on both sides.
The following orders are made:
1.Time for the hearing of this application is abridged to 2.15 pm on Friday, 4 May 2018.
2.Time is extended to the second, third and fourth defendants for the filing and service of the defendants' expert report as seen per document 207 on the Integrated Court Management System (ICMS) to Friday, 4 May 2018.
3.The taking of expert evidence will be fixed for Wednesday, 23 May 2018, subject to further order.
4.The plaintiff's costs of the application will be paid by the second, third and fourth defendants, on an indemnity basis, and paid forthwith once ascertained.
5.The plaintiff has leave to apply for any costs thrown away from the taking of concurrent expert evidence to the adjusted and later date of Wednesday, 23 May 2018.
6.The plaintiff has leave to concurrently apply for its costs to be met by the lawyers of record for the second, third and fourth defendants.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TG
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES KENNETH MARTIN AND CORBOY
2 JULY 2018