Russell v Aitken Partners Pty Ltd

[2019] VCC 1217

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-16-05222

Christopher Andrew Russell	Plaintiff
v
Aitken Partners Pty Ltd	Defendant

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JUDGE:	Judge Woodward
WHERE HELD:	Melbourne
HOW MADE:	On the papers
DATE OF RULING:	9 August 2019
CASE MAY BE CITED AS:	Russell v Aitken Partners Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VCC 1217

REASONS FOR RULING
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HIS HONOUR:

1       By reasons delivered on 2 August 2019 (“2 August reasons”), I gave judgment in favour of the defendant, Aitken Partners.  I concluded that Mr Russell’s claims were misconceived both in fact and law and found that Aitken Partners’ conduct was not negligent.  I also found that Mr Russell failed to establish any causal link between the alleged negligence and the various losses he claims.

2       In paragraphs 4 and 91 of my 2 August reasons, I expressed the tentative view that Mr Russell should pay Aitken Partners’ costs of the proceeding on the standard basis, in default of agreement.  However, I invited submissions from the parties if they sought different orders.  Aitken Partners consented to the orders I proposed, but by email received on 6 August 2019, Mr Russell filed lengthy submissions contesting them (“6 August submissions”).  In support of his submissions, he also sent four further emails to my chambers, attaching draft terms of settlement and copies of various emails (including emails marked “without prejudice”) relating to his settlement discussions with Aitken Partners.  Aitken Partners then sought to reply, which they did by submissions sent on 7 August 2019.  I then allowed Mr Russell to provide a response to Aitken Partners’ reply, which he submitted on 8 August 2019.

3       In summary, Mr Russell’s 6 August submissions argued that there should be no order as to costs, on the basis that:

·    the parties reached a binding settlement on 16 May 2019 and Aitken Partners withdrew from that agreement without proper cause;

·    Aitken Partners’ withdrawal from the supposed agreement was the cause of Mr Russell’s absence from the hearing on 17 May 2019; and

·    Mr Russell was prejudiced by not attending the hearing on 17 May 2019, as he was unable to cross-examine Mr Bradley as to the DST correspondence.

4       In their reply, Aitken Partners submitted that:

·    the parties did not reach any binding settlement, and accordingly Aitken Partners did not and could not “withdraw” from a settlement that did not exist;

·    Mr Russell made his own decision not to attend court on 17 May 2019, despite Aitken Partners’ solicitor, Ms Alix Osborn, repeatedly informing him that he was required to attend; and

·    even if Mr Russell had attended court on 17 May 2019, he would not have cross-examined Mr Bradley regarding the DST correspondence, as Mr Russell abandoned his claim in relation to that issue on 16 May 2019.

5       Aitken Partners also objected to Mr Russell’s reliance on the “without prejudice” correspondence in circumstances where the correspondence did not result in any settlement, and where the correspondence was not marked “without prejudice save as to costs”.

6       As I understood them, Mr Russell’s reply submissions dated 8 August essentially repeated the arguments made in his 6 August submissions concerning the existence of a binding settlement agreement, and further submitted that “costs should be awarded to the Plaintiff, and that Court costs, of the 17 May, should be paid by the Defendant; alternatively, that no order on costs should be made save the costs of the Court”.

7       To the extent that the parties’ submissions concern whether an agreement was reached by them to settle the proceeding on 16 May 2019, it is unnecessary for me to deal with them.  While they might form the basis of a fresh claim by Mr Russell (see, for example, Masters v Cameron (1954) 91 CLR 353), they are not relevant to the question of costs, except in one minor respect. Mr Russell’s offer to settle on a “walk-away” basis might be said to amount to a Calderbank offer (see Calderbank v Calderbank [1975] 3 All ER 333; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435).

8       In order to determine this issue, I have considered the materials he provided, including the emails marked “without prejudice”.  Having done so, I am satisfied that on no view could Mr Russell be said to have achieved a result in the proceeding that was better than the terms of the offer.  Accordingly, the principles applicable to the making of a Calderbank offer are not engaged.  I note that even if the position were otherwise, at best, that offer could be relevant only to the costs of the last day of trial.

9       To the extent that Mr Russell’s submissions traverse matters going to the substance of my 2 August reasons, I decline the request implicit in those submissions to re-open those reasons.  In my view, nothing raised in those submissions could conceivably affect the substance of those reasons or the outcome of the proceeding.  And in so far as his submissions relate to any prejudice he says he suffered by virtue of his absence from the hearing on 17 May (and the consequent loss of his opportunity to cross-examine Mr Bradley), I accept Aitken Partners’ submissions in this regard.

10      In the circumstances, I will make the orders foreshadowed in paragraphs 4 and 91 of my reasons.

Sealing of Mr Russell’s submissions dated 6 August 2019

11      Separate to the issue of costs, on 6 August 2019, by email to my chambers received at 1.43pm, Mr Howard Obst of the defendant’s solicitors sought the opportunity to submit that “Mr Russell’s [6 August submissions] are scandalous and attacking the integrity of Ms Osborn in circumstances where she has no opportunity to respond”.  My associates responded on the same day, informing Mr Obst that he could set out his concerns in a letter to my chambers.

12      Mr Obst provided a copy of this letter by email on 7 August 2019.  In summary, he argued that Mr Russell’s 6 August submissions imply that, in the course of engaging in settlement negotiations on Aitken Partners’ behalf, Ms Osborn “acted in an unfair and misleading manner so as to trick and take advantage of Mr Russell”, and “they suggest that Ms Osborn acted in breach of her duty to the court”.  Mr Obst also argued that the assertions in Mr Russell’s 6 August submissions are likely to provide any reader “with a view about Ms Osborn’s conduct such as to damage her reputation”.  Mr Obst sought an order that Mr Russell’s submissions be placed in a sealed envelope on the court file, marked not to be opened without an order of the court after notice to Obst Legal.  Mr Russell provided his reply on 7 August 2019, essentially disputing that his submissions have the effect asserted by Mr Obst’s letter.

13      In my view, a court order sealing Mr Russell’s 6 August submissions is a disproportionate response to the content and effect of those submissions.  The allegations concerning Ms Osborn have been comprehensively answered in responding material and then (to the extent they might have been thought to impugn Ms Osborn) qualified and explained in Mr Russell’s most recent submissions, which (among other things) described Ms Osborn’s conduct as exemplary.  Further, the allegations have not been aired in open court and will be retained on the court file in company with the responding submissions.  While Mr Obst’s concern for Ms Osborn’s reputation is understandable, I am satisfied that these matters provide sufficient protection in all the circumstances.

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Certificate

I certify that these 5 pages are a true copy of the Ruling of His Honour Judge Woodward delivered on 9 August 2019.

Dated: 9 August 2019

Shakti Nambiar