PMC Roofing Pty Ltd v Nikolyn Pty Ltd
[2010] WADC 151
•12 OCTOBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PMC ROOFING PTY LTD -v- NIKOLYN PTY LTD [2010] WADC 151
CORAM: YEATS DCJ
HEARD: 4-5 OCTOBER 2010
DELIVERED : 12 OCTOBER 2010
FILE NO/S: CIV 1538 of 2007
BETWEEN: PMC ROOFING PTY LTD (ACN 109 679 334)
Plaintiff
AND
NIKOLYN PTY LTD (ACN 078 833 977)
Defendant
(In Original Action)NIKOLYN PTY LTD (ACN 078 833 977)
Plaintiff by CounterclaimAND
PMC ROOFING PTY LTD (ACN 109 679 334)
Defendant by Counterclaim
(By Counterclaim)
Catchwords:
Civil procedure - Costs - Whether plaintiff entitled to costs thrown away
Legislation:
Nil
Result:
Costs of the adjournment not awarded to the plaintiff
Representation:
Counsel:
Plaintiff: Mr P A Monaco
Defendant: Ms E C Hensler
Plaintiff by Counterclaim : Ms E C Hensler
Defendant by Counterclaim : Mr P A Monaco
Solicitors:
Plaintiff: Norton Rose Australia
Defendant: GV Lawyers
Plaintiff by Counterclaim : GV Lawyers
Defendant by Counterclaim : Norton Rose Australia
Case(s) referred to in judgment(s):
Nil
YEATS DCJ: On 4 October 2010 (which was intended to be the first day of a 10 day trial) I vacated the trial dates and ordered the trial be adjourned.
The plaintiff now seeks orders that the defendant pay the plaintiff's costs of the adjournment in any event and to be paid forthwith with such costs:
(a)being on an indemnity basis;
(b)being taxed if not agreed;
(c)the plaintiff be allowed five days getting up;
(d)the plaintiff be allowed fee on brief;
(e)the plaintiff be allowed counsel fee for three days;
(f)the plaintiff be allowed solicitor attending one day of trial.
The defendant contends that there should be no order as to costs.
The plaintiff's writ issued on 1 August 2007 and the matter was entered for trial on 3 November 2009. At the pre‑trial conference held on 13 April 2010 these trial dates (4 to 15 October 2010) were set. At the pre‑trial conference the defendant was given leave to adduce expert evidence and was ordered to serve any expert report and to disclose in writing the substance of any expert report by 14 May 2010.
This did not happen. Most of the responsibility for the late tendering of expert evidence lies with the defendant, but some responsibility lies with the plaintiff for its failure to discover relevant documents, the invoices for materials supplied. This deficiency in the plaintiff's discovery had been noted as early as 2009 but was not pursued until 28 June 2010 when the plaintiff was ordered to discover documents on oath. The plaintiff filed a further affidavit of discovery on 23 July 2010. As a result of that further discovery the defendant realised it was necessary for the defendant to subpoena the suppliers of the materials in order to obtain copies of the invoices. Those documents were delivered to the court but there were further delays in the defendant obtaining copies of the invoices needed to brief its expert.
On 13 August 2010 the defendant brought an application to adjourn the trial; that application included an undertaking to pay the plaintiff's costs thrown away. Unfortunately, that application was not heard until 10 September 2010 by Groves DCJ. Groves DCJ refused the application to adjourn and ordered the defendant to file and serve its expert evidence on or before 27 September 2010, a public holiday just four working days prior to the date the trial was to commence. The defendant failed to file and serve its expert report until 1 October 2010, the Friday prior to the commencement of the trial. On the morning of the trial the defendant sought leave to extend time under the order of Groves DCJ to 1 October 2010 for the filing of the expert evidence.
It is apparent from the reasons of Groves DCJ on 10 September 2010 when he declined to adjourn the trial that he did so on the chance that the plaintiff would not need an adjournment if the expert evidence was tendered. Groves DCJ stated (ts 37):
I'm mindful also that if expert evidence is pursued by the defendant and produced to the plaintiff between now and the trial dates, that that may occasion prejudice to the plaintiff. I can well appreciate that if that situation does arise the plaintiff may then seek an adjournment, or seek to vacate the trial dates so that instructions can be taken as to the matters which may be raised by such expert evidence. That would be quite understandable and I would suggest a good reason then for the trial to be vacated.
That is exactly the situation that I faced on 4 October 2010 when the trial should have commenced. In order to ensure a trial fair to both parties I allowed the defendant to adduce its expert evidence as part of its case. But I accepted the plaintiff's submission that it will need an adjournment in order to take instructions on the defendant's expert report and it may require leave to adduce expert evidence in answer. As Groves DCJ predicted, this provided a quite understandable and good reason to vacate the trial dates and I did that.
Fault for the adjournment
During the hearing on 4 October 2010 evidence emerged that the plaintiff's lengthy witness statements were not filed until 1 October, the Friday prior to the trial's commencement and that the defendant filed 39 books of trial documents on that date. Counsel for the plaintiff indicated that because of the late filing of the 39 books of documents the plaintiff would need a three day adjournment before the trial could begin even if the expert evidence were not allowed to be adduced.
I have since had the affidavit of the plaintiff's solicitor sworn on 4 October 2010 explaining that the blame for the late filing of the 39 books of trial documents does not rest entirely with the defendant. The plaintiff failed to file and serve its list of records and objects to be tendered 42 days before trial on or before 23 August 2010. It was only after the defendant's solicitors wrote to the plaintiff on 18 September 2010 enquiring about those documents that the plaintiff undertook to provide its list by 24 September 2010.
Both the defendant and the plaintiff needed to have documents included in the court bundle of documents and the parties were unable to agree to the arrangements for the preparations of the trial bundle until Thursday, 30 September 2010 one working day before trial. On that day the defendant agreed to prepare the bundles of documents with each party to pay half the costs. Therefore between 30 September and 1 October the defendant collated, copied and indexed the 39 files of documents so that the matter would be ready for trial. On 1 October 2010 the defendant's solicitors telephoned the plaintiff's solicitors on three occasions to arrange for the plaintiff to collect its copy of those bundles but there was no reply.
In considering where fault lies for this adjournment I believe it is appropriate to take account not only as the plaintiff asked me to do of the late tendering of the expert evidence on the part of the defendant but also to take into account the lack of cooperation on the part of the plaintiff in the provision of full discovery and in the plaintiff's failure otherwise to prepare for trial in a timely way. The plaintiff's late discovery of documents delayed the preparation of the defendant's expert report. The plaintiff's late filing of its witness statements which were of considerable length would have in any event contributed to a delay in the start of the trial. The evidence before me shows the plaintiff failed to cooperate in a timely way with the preparation of the 39 trial documents.
In these circumstances it does not seem to me to be appropriate to make a costs order against the defendant for costs thrown away. Most of the costs of getting up this trial will not be wasted by either party because the court has been able to find another 10 day listing commencing in early December 2010 and the work done now will be useful in that trial.
On 5 October 2010 I made programming orders in preparation for the trial:
1.The defendant provide to the plaintiff a copy of the materials the defendant submitted to the defendant's expert M A Bendotti at 4.00 pm on 5 October 2010 and that the plaintiff pay the reasonable costs of copying.
2.The plaintiff have leave to adduce expert evidence in any report or the substance of the evidence of any expert evidence whose evidence is to be adduced by the plaintiff and to be filed and served on or before 29 October 2010.
3.The defendant file and serve signed witness statements by 6 October 2010.
4.The parties file and serve any responsive lay and expert evidence witness statements on or before 26 November 2010.
5.The defendant amend the Scott Schedule on or before 19 October 2010.
6.On or before 12 October 2010 the defendant provide notice to the plaintiff of which amounts claimed by the plaintiff, as invoiced by the plaintiff to the defendant and remaining unpaid, are disputed by the defendant and reasons for such dispute other than as a set‑off.
7.On or before 26 October 2010 the defendant to provide a schedule of damages.
8.If an intended witness, whose statement has been served in accordance with this order, does not give evidence at the trial, no party may put his statement into evidence at the trial save with leave of the court.
9.Where the party serving a statement does call the intended witness at the trial:
(a)that party may not, without leave of the court, lead evidence from that witness if the substance of the evidence is not included in the statement served; and
(b)the court may direct that the statement, or any part of it, stand as the evidence‑in‑chief of the witness; and
(c)that party should have the statement ready for tender at the trial together with copies for each other party, the witness and the court.
10.Save with leave of the court, no party may adduce evidence from any witness who statement has not been served in accordance with this order.
I will hear the parties on whether the costs of the adjournment of the trial on 4 October 2010 should be born by each party or whether those costs should be in the cause.
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