Schembri v Fieldberg
[2015] VSC 439
•21 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
S CI 2014 03360
| JUDY SCHEMBRI | Plaintiff |
| v | |
| FIELDBERG PTY LTD | Defendant |
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JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2015 |
DATE OF RULING: | 21 August 2015 |
CASE MAY BE CITED AS: | Schembri v Fieldberg |
MEDIUM NEUTRAL CITATION: | [2015] VSC 439 |
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COSTS – Costs on a standard basis – Circumstances for awarding indemnity costs – Amendments to statement of claim – Rule 63.02 Supreme Court (General Civil Procedure) Rules.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC Mr S Martin | Slater & Gordon |
| For the Defendant | Mr P Scanlon QC Mr M Clarke | Wisewould Mahony |
HER HONOUR:
This matter was fixed for trial on 10 August 2015. The trial was subsequently adjourned on 17 August 2015 to 21 August 2015 so that the parties could make submissions in relation to the costs of the adjournment of the trial and to propose a timetable for the future conduct of the matter.
The plaintiff relies on the affidavit of Leah Hickey sworn 19 August 2015 and written submissions.
The defendant relies on the affidavit of Stephanie Veronique Koochew sworn 20 August 2015 and written submissions.
It is appropriate to set out in some detail the procedural history of this case. Before doing so, the case is a relatively simple matter in which the plaintiff alleged initial negligence of the defendant. The plaintiff has obtained leave to further amend the statement of claim for breach of statutory duty against the defendant.
In summary, the plaintiff claims that on 16 August 2011 while working in the course of her employment for the defendant at the Elizabeth Street premises trading as ‘Australian Academy of Hairdressing’, she slipped upon a wet and slippery floor situated in the toilet block and, as a result, suffered injury.
The defendant denies negligence and relies in an alternative, that the plaintiff was also negligent by failing to take proper care for her own safety in various ways.
The procedural history of this claim up until the trial was unremarkable. On 2 July 2014 the plaintiff issued a Writ and Statement of Claim. There were 21 particulars of negligence pleaded. The parties filed and served the proper basis certificates pursuant to the Civil Procedure Act 2010. The defendant filed a notice that a jury was required on 24 July 2014 and a defence was filed on 30 July 2014.
By consent, orders were made dated 20 August 2014 which fixed the proceeding for trial on 10 August 2015. Discovery was to be completed by 1 October 2014 and mediation by 11 March 2015. Orders were also made for a final directions hearing on 11 March 2015 at which time, the parties were to be in a position to:
(i) Confirm that the proceeding is ready to proceed to trial;
(ii) Confirm the estimated number of sitting dates;
(iii)Provide a list of proposed medical practitioners and expert witnesses to be called at trial;
(iv)Provide a list of proposed lay witnesses to be called at trial; and
(v)Identify any outstanding interlocutory issues or proposed amendments to the pleadings.
On 26 March 2015 by consent, orders were made extending the time for mediation and the final directions hearing was relisted on 15 July 2015.
On 17 July 2015 the final directions hearing took place. Counsel appeared for the plaintiff. There was no appearance for the defendant. The trial date was confirmed on 10 August 2015 on a seven to ten day estimate.
The plaintiff and defendant’s solicitors completed call-over forms dated 29 July 2015. The call-over forms indicated the proceeding was ready to proceed and there was no suggestion of any outstanding interlocutory steps.
On 7 August 2015, my Associate sent an email to the solicitors for the plaintiff and the defendant asking that they confirm if there were any preliminary issues which needed to be considered before empanelling the jury. The plaintiff’s solicitors indicated that there was an outstanding discovery issue.
At the commencement of the trial the plaintiff made applications in relation to discovery and sought leave to amend the statement of claim. The amendments added two further particulars of negligence as follows:
Paragraph 5(v) – failing to take heed of complaint; and
Paragraph 5(w) – failing to implement any or any adequate system whereby toilet blocks were closed during cleaning processes.
I dismissed the plaintiff’s discovery applications on that day. I considered the proposed amendments were ambiguous and vague and adjourned the application to the next day, 11 August 2015, to give the plaintiff time to provide further details of the amendments sought.[1]
[1]Transcript 10 August 2015, 8.
At midday on 11 August 2015 the Court reconvened. The plaintiff provided a revised amended statement of claim which pleaded the amended particulars as follows:
Paragraph 5(v) Failing to take heed of complaints
Particulars of complaints
(A)The Plaintiff complained orally on approximately two occasions to Mary Ellis within seven months of her employment with the Defendant in respect of floors being mopped during the course of the day plus the absence of caution signs;
(B)Students complained to the Plaintiff and the Plaintiff referred them to Mary Ellis prior to the Plaintiff’s accident on dates which the Plaintiff cannot specify but on a number of occasions. The complaints to the Plaintiff were in respect of floors which had been mopped during the day and the absence of yellow caution signs.
(C)Stacy Simons during the course of 2011 and prior to the Plaintiff’s accident orally complained to Jan Gherkin and Valda Byrne on approximately five to seven occasions in respect of floors being mopped in the presence of foot traffic, including the stairs.
(D)On approximately two to four occasions during 2011 and prior to the Plaintiff’s accident Stacy Simons orally complained to Jan Gherkin about toilet floors being mopped during periods when they were being used and on one occasion she herself slipped but did not fall.
Paragraph 5(w) Failing to implement any or any adequate system whereby toilets were closed where floors were wet/slippery after being mopped
Paragraph 5(x) Failing to implement any or any adequate system or alternative system whereby alternative toilets were utilised until such time floor or toilets which had been mopped were dry/safe …
Following submissions, I ruled that the plaintiff be granted leave to file and serve the amended statement of claim and that the defendant have leave to interrogate the plaintiff in relation to the amended particulars. The defendant was to file and serve its interrogatories by 5 pm on the same day, 11 August 2014. The plaintiff was ordered to file and serve answers to interrogatories by 2 pm on Wednesday, 12 August 2015 and the trial was adjourned to 14 August 2015.
The adjournment was allowed to provide the parties an opportunity to further mediate the matter and so that the plaintiff’s expert, Mr Richard Lightfoot, could undertake a further view of the premises. A further mediation was conducted, albeit unsuccessfully. Costs of the adjournment were reserved until the completion of the trial at that stage.
The trial was reconvened on 14 August 2015. Following some argument about the adequacy of the plaintiff’s answers to interrogatories, the Court was provided with an amended list of prospective witnesses for the plaintiff. Mr Monti, counsel for the plaintiff, informed the Court that the trial estimate was now four to five weeks given the additional witnesses. Mr Scanlon, counsel for the defendant, did not disagree with the increased revised estimate.
The Court was also informed that the plaintiff’s expert, Mr Lightfoot, was going to provide a supplementary report, following the view of the premises and that Mr Lightfoot would inspect different places to those inspected at the first view. Mr Monti submitted to the Court that Mr Lightfoot’s supplementary report would deal in a little more detail with the amendments to the statement of claim and that there will be ‘unlikely any surprises in the report’.[2]
[2]Transcript 14 August 2015, 71 LL 16–17.
The jury was empanelled in the afternoon of 14 August 2015. The plaintiff’s opening was adjourned to Monday 17 August 2015, at which time it was anticipated Mr Lightfoot’s supplementary report would be served.
The matter resumed on Monday 17 August 2015. There was some initial argument about the plaintiff’s proposed opening to the jury. Mr Lightfoot’s report was provided to the defendant at approximately 10:20 am. It had been received by the plaintiff’s solicitors at 10:05 am the same day.
Mr Monti made an application for a further amended statement of claim to include statutory breaches as a result of Mr Lightfoot’s supplementary report.
Mr Monti indicated that leave was sought to amend to include the new cause of action of statutory breach but that there may also be other amendments, in terms of particulars of negligence referring to Mr Lightfoot’s reference to various Work Safe publications, which were referred to in his supplementary report.[3]
[3]Transcript 17 August 2015, 112 LL 1–5.
Mr Monti also submitted that the proposed amendment in relation to the statutory breach did not take the defendant by surprise given the particulars of negligence.
The parties agreed that the jury would need to be discharged. The defendant opposed the application for leave to amend to include a separate cause of action of statutory breach. The defendant submitted that if leave to amend was granted, it should be entitled to have time to respond to any proposed amendments, consider whether an expert was needed to be retained and that Mr Lightfoot’s report now went beyond the area of the plaintiff’s alleged slip, to ‘stairs and beyond’.[4]
[4]Ibid, 116 L 22.
I ruled that the plaintiff have leave to file and serve the further amended statement of claim. The jury was discharged and the trial adjourned to a date to be fixed. The costs argument by reason of the adjournment was reserved to 21 August 2015.
The plaintiff’s evidence in relation to the circumstances giving rise to the amendments; Mr Lightfoot’s report; and the adjournment are in summary as follows:
·Mr Lightfoot was engaged by the plaintiff’s solicitors in 2015 to provide an opinion including a request that Mr Lightfoot consider any breach of the Occupational Health and Safety Act and more particularly the regulations;
·The defendant agreed to a view of the premises on 17 February 2015. In a letter dated 3 February 2015 from the defendant’s solicitors to the plaintiff’s solicitors, they required that amongst other things the following terms be observed:
That the view would not be used for a fishing expedition and will be confined to the area alleged to have been causative of injuries declared in the plaintiff’s statement of claim … [5]
·Mr Lightfoot’s report was provided on 19 February 2015;
·On 7 August 2015 prior to the commencement of the trial, during conference with counsel, a witness gave ‘a great deal more information and instructions were provided in respect of the premises as a whole and the defendant’s system of cleaning the toilets on the premises, the floors and stairs, and that there had been other incidents. Further, instructions at conference were in much greater detail in relation to the particular circumstances of the plaintiff’s fall and in significant detail in respect of complaints that had been made to the defendant’;[6]
·A further view was conducted on 13 August 2015 of the defendant’s premises and Mr Lightfoot had the opportunity to view the entirety of the premises including the two sets of female toilets which were on the first floor, access and examine the plaintiff’s work area, and had access to and examined the stairs and the former office of Ms Valda Byrnes.
[5]Affidavit of Leah J Hickey sworn 19 August 2015, exhibit LH 2.
[6]Ibid [7].
The affidavit of Stephanie Koochew dated 20 August 2015 provides as follows:
·Following the letter of 3 February 2015 to the plaintiff’s solicitors, no response was received. Present at the view were the plaintiff, Mr Monti, Ms Leah Hickey, Mr Richard Lightfoot, Mrs Valda Byrne (chief operating officer of the defendant) and Ms Koochew;
·At no stage during the view where the plaintiff allegedly fell did anyone request to view any other part of the premises and at no stage subsequent to the view did the plaintiff’s solicitors correspond to Ms Koochew to discuss the terms of the view to complain about the manner in which the view was conducted; and
·Ms Koochew denies the allegation that a full and comprehensive view of the premises was denied to the plaintiff.
Submissions
The plaintiff submits that the defendant should pay the costs of the first week of trial on the basis that:
(a) the defendant gave no good reason as to why it required so many days to obtain instructions from three individuals, all of whom are still employed by the defendant;
(b) the defendant gave no explanation or justification as to why it required the additional time when the application was made to amend the statement of claim;
(c) it was a simple matter for the defendant to obtain instructions from individuals who are readily available;
(d) the defendant’s interrogatories that were filed were of such a nature that they could have been prepared in less time;
(e) the plaintiff was not aware of the other two sets of female toilets referred to in Mr Lightfoot’s supplementary report until several days prior to trial due to ‘conditions imposed upon the plaintiff when the view was held in February this year’;
(f) the same factual basis for the original allegation of negligence underpins the amendments to the statement of claim to plead breach of Occupational Health and Safety Regulations. Thus, the plaintiff queries why an adjournment was needed by the defendant to respond to the new cause of action;
(g) the adjournment was required by the plaintiff insofar as the parties used the time to mediate and to conduct a view of the premises. In the circumstances, the plaintiff does not seek its costs of the two days that were utilised for the mediation and the additional view;
(h) in circumstances where the plaintiff was prepared to continue with the case as a cause or alternatively the case could have been commenced with a new jury and that it is submitted the adjournment sought by the defendant was ‘a smoke screen’;
(i) it would be unfair and unjust to inflict the cost of the six days of hearing upon the plaintiff; and
(j) alternatively, it is premature to make any costs order at this junction, as it may be that the defendant does not obtain an expert report in response to Mr Lightfoot.
The defendant submits that the plaintiff is entirely responsible for the delay of the commencement of the trial, the wasted sitting days and the ultimate adjournment. The defendant seeks an order that the plaintiff pay the defendant’s costs of the trial from 10 August 2015 to 17 August 2015, and the cost of the costs application, and that such costs be paid on an indemnity basis.
The defendant submits that the amended further particulars provided on 11 August 2015 required seeking instructions from a number of witnesses, including witnesses that had not been relevant to the proceeding prior to the amendment to the statement of claim. The defendant says that, had the allegations of prior complaints been pleaded prior to the commencement of the trial, it would have interrogated the plaintiff about the complaints. Rather, the trial had to be adjourned to allow the defendant time to interrogate, which it undertook and served on the same day of the amendments so that the plaintiff could provide answers shortly thereafter.
The first occasion the plaintiff raised the need for a further view of the defendant’s premises was on 10 August 2015, which appears to be based on the receipt of further instructions received on or about 7 August 2015.
The defendant submits that ‘it is disingenuous in the extreme’ for the plaintiff to suggest that the existence of two other sets of female toilets in the premises did not become known until several days prior to the trial commencing due to the conditions imposed on the plaintiff from the view that was held in February this year. This is on the basis that the plaintiff must have been in a position to provide her legal representatives with instructions as to the layout of the premises or the existence of the other set of female toilets at the premises.
The defendant also takes issue with the suggestion that the plaintiff was denied a full and comprehensive view and was constrained at the initial view. The defendant submits that the allegation is serious and made without any supporting evidence by way of affidavit and is simply asserted in the plaintiff’s submission. The defendant submits that the need for a further view arose following receipt of further instructions obtained from the plaintiff and other witnesses in the lead-up to the trial date of 10 August 2015. It was these further instructions which in turn led to the amendment to the statement of claim. At the time of the initial view, the defendant submits there was no need to view any other area than the toilets where the incident occurred, as that was all that was relevantly pleaded by the plaintiff. Further, at no stage did the plaintiff’s solicitors contact the defendant’s solicitors in relation to the initial view or make any complaint in relation to the initial view.
In the circumstances, the defendant submits that, pursuant to r 63.02 of the Supreme Court (General Civil Procedure) Rules, the Court should order that the plaintiff pay the defendant’s costs of the adjournment on an indemnity basis on the basis that:
(a)the waste of Court time and adjournment has been entirely brought about by reason of the plaintiff’s significant alteration to her claim to include new particulars of negligence and the introduction of an entirely new cause of action on day six of the trial, being breach of statutory duty to the Occupational Health and Safety Regulations 2007; and
(b)the plaintiff, by way of submission or evidence in an affidavit, has not provided the Court with any proper explanation as to why an order should not be made.
Decision
The first adjournment, which was granted on 11 August 2015, was as a direct consequence of the plaintiff’s amendments to the statement of claim. The amendments as initially pleaded were inadequate and ambiguous, and as such the plaintiff was granted some time to provide further details of the proposed particulars.
The amended particulars raised a brand new allegation of a failure to heed complaints and raised issues in relation to the complaints made and to whom the complaints were made. Given the new particulars, it was appropriate that the defendant had an opportunity to obtain instructions and to interrogate the plaintiff. The defendant prepared interrogatories and served interrogatories on the same day the order was made. The plaintiff was then given a short period of time to provide answers to the interrogatories and the parties engaged in a further mediation and the plaintiff organised a further view of the premises.
There is no evidence before the Court that the plaintiff, through her legal representatives, made any effort to seek a further view before 10 or 11 August 2015. Upon obtaining the further instructions on 7 August 2015 from the plaintiff and other witnesses, the plaintiff must have been aware of the need for a further view at that stage. Further, the initial view which was undertaken was based on the pleadings and the case as it was then understood. There is no evidence before the Court that the plaintiff sought to inspect further areas and was denied access. In attendance at the view was Senior Counsel for the plaintiff, the plaintiff’s instructing solicitors and the plaintiff herself. I do not accept that the plaintiff was denied access or, for that matter, asked for further access to be granted.
I consider the only reason this trial did not commence on 10 August 2015 and was adjourned until 14 August 2015 was as a consequence of the plaintiff’s amended pleading and the need for a further view.
I consider the adjournment of the trial on 17 August 2015 came about due to the late service of Mr Lightfoot’s report and the plaintiff’s decision to plead a further cause of action. The plaintiff submits that the defendant has failed to provide any adequate explanation as to why it requires further time and cannot respond to the new cause of action. The starting point is that the plaintiff only filed and served a further amended statement of claim on 21 August 2015. The defendant is entitled to know the case that it has to respond to. As noted, there was at least a suggestion that there may be further amendments arising out of Mr Lightfoot’s report. To suggest that the defendant should be prepared to proceed in circumstances where not even the plaintiff could definitively say what the new cause of action and particulars entail is unreasonable.
The plaintiff’s submission that the defendant could have proceeded with this case as a cause is misconceived. The defendant elected to have this matter heard by jury and is entitled to do so. It would have been of no benefit to empanel another jury in circumstances where it was not clear to the parties or the Court what the new cause of action entailed and the scope of the further amendments. It would be inappropriate to have empaneled another jury in circumstances where the plaintiff’s case was far from ready to proceed.
It seems to me in all the circumstances of this case that the adjournment and wasted time from 10 August 2015 to 17 August 2015, including the costs application, was as a direct result of the plaintiff’s amendments to the statement of claim, the further view by Mr Lightfoot and Mr Lightfoot’s supplementary report.
I consider that it is appropriate that the plaintiff pay the defendant’s costs thrown away by reason of the adjournment.
The defendant seeks its costs on an indemnity basis. Whether to allow costs on an indemnity basis or other basis is in the discretion of the Court. However, the exercise of the discretion to award costs over and above the ordinary is exceptional, reserved for cases where the losing party has engaged in unmeritorious, or deliberate or high-handed or other improper conduct such as to warrant the Court showing its disapproval and, at the same time, preventing the successful party being left out of pocket.[7]
[7]PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24 and Hudspeth v Scholastic Cleaning and Consulting Services Pty Ltd& anor (Ruling No 1) [2010] VSC 495.
In Ugly Tribe Co Pty Ltd v Sikola,[8] Harper J said that the special circumstances in which it had been held proper to order indemnity costs, included the following:
[8][2001] VSC 189; BC200103454 at [7].
(i)the making of an allegation, known to be false, that the opposite party is guilty of fraud;
(ii)the making of an irrelevant allegation of fraud;
(iii)conduct which causes loss of time to the Court and to other parties;
(iv)the commencement or continuation of proceedings for an ulterior motive;
(v)conduct which amounts to a contempt of court;
(vi)the commencement or continuation of proceedings in wilful disregard of known facts or clearly established law; and
(vii)the failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial.
In the circumstances of this case, the evidence is that the amendments were necessitated due to obtaining further instructions from the plaintiff and other witnesses on 7 August 2015. It is regrettable that these instructions were obtained at such a late stage of the plaintiff’s preparation. However, I am not satisfied that the conduct is such to justify an order for costs on an indemnity basis.
In the circumstances, I consider the plaintiff should pay the defendant’s costs of the trial from 10 August to 17 August 2015 and of 21 August 2015, and that such costs be paid on a standard basis. The costs are stayed until the conclusion of the proceeding.
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