Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd
[2020] VSC 161
•3 April 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2019 00851
| SEVEN SISTERS VINEYARD PTY LTD (ACN 006 837 930) | Plaintiff |
| and | |
| KONIGS PTY LTD (ACN 053 733 958) | Defendant |
| and | |
| JN CHALMERS INVESTMENTS PTY LTD (ACN 168 238 284) AS THE TRUSTEE FOR CHALMERS FAMILY TRUST | Third Party |
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JUDGE: | John Dixon J |
WHERE HELD: | In chambers |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 3 April 2020 |
CASE MAY BE CITED AS: | Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 161 |
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PRACTICE AND PROCEDURE – Application to vacate trial date – COVID-19 pandemic – Ongoing discovery dispute affecting preparation of expert evidence – Relevant considerations.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | This application was determined on the papers, including written submissions from the parties. | |
| For the Defendant | ||
| For the Third Party | ||
HIS HONOUR:
The defendant applies to vacate the trial date of 20 April 2020 with consequential case management timetabling. It does so for two reasons.
First, it wishes to file and serve further expert accounting evidence that assesses the plaintiff’s loss of future profits claim, on the basis of a substantial number of financial records having been recently discovered by the plaintiff.
Second, the defendant also contends that it will not be practical, and will result in logistical difficulties, having regard to the community restrictions imposed in response to the COVID-19 pandemic, for the trial to proceed on the date presently set down.
In the absence of objection from the parties, this application was determined on the papers. Relevantly, the papers are:
(a) the plaintiff’s outline of submission;
(b) three affidavits of the plaintiff’s solicitor, Peter Francis Boyle, affirmed 4 November 2019, 24 March 2020 and 30 March 2020;
(c) the defendant’s submission;
(d) two affidavits of the defendant’s solicitor, Lesley Anne Davis, sworn 25 March and 31 March 2020; and
(e) the third party’s outline of submission.
In opposition to the adjournment application, the plaintiff submits, firstly, that the defendant had ample opportunity to seek discovery of the documents that its loss expert requires, but unreasonably delayed in doing so. It submits the trial date ought not to be adjourned to accommodate forensic steps that the defendant ought properly to have taken many months ago, and, further, that there is no evidence that those steps, or the service of additional expert evidence, will materially affect the court’s assessment of the plaintiff’s loss.
Secondly, the plaintiff submits that the inconvenience of dealing with the COVID-19 pandemic restrictions is common to all parties to the proceeding and not a reason of itself to justify an adjournment. The plaintiff has a prima facie right to a timely determination of its claim.
The third party does not oppose the defendant’s application to adjourn the hearing, noting its interest in ensuring that the defendant has a proper opportunity to test the plaintiff’s quantum evidence.
Briefly stated, the plaintiff alleges in this proceeding that a fire in its vineyard in north-east Victoria destroyed a portion of its vine stock and vineyard infrastructure. The fire was caused by a failure in a gas-powered ‘bird scare cannon’ that had been purchased on the day preceding the fire from the defendant. The third party imported the cannon and a fourth party, who has only just been served out of the jurisdiction, manufactured the cannon.
The most substantial component of the plaintiff’s claimed loss and damage is loss of profits for the years 2016‑2024. On the basis of certain assumptions and analysis of financial statements for seven years, the plaintiff’s expert, Mr Adrian Kennelly, an agricultural scientist, stated his opinion was that the plaintiff’s loss of future profits was either $1,447,813 or $1,549,956. These reports were dated 4 October 2019 and 4 March 2020.
The defendant engaged Ms Tamara Lindsay, a chartered accountant specialising in forensic accounting services, who reported that the plaintiff’s expert’s primary sources do not sufficiently reveal the underlying accounting data that would enable proper assessment of a claim for future loss of profits. Ms Lindsay attacked Mr Kennelly’s methodology in the first instance and did not herself make an assessment of the loss. Ms Lindsay identified the type of documents that she considered were necessary for a proper analysis in order to express that opinion. On 25 March 2020, the plaintiff served a fourth list of documents that discovered a substantial number of documents constituting financial records of the plaintiff, which are likely to be relevant to the assessment of loss.
It is these recently discovered documents that Ms Lindsay wishes to analyse, in order to report on the quantum of this head of damage. I accept that this further report will be critical evidence in the trial, not only for the defendant, but also for the third and fourth parties.
The plaintiff relies on the history of case management of this proceeding, noting that the trial date of 20 April 2020 was fixed by Clayton JR at the first directions hearing on 9 May 2019. The obligation to make discovery by 28 June 2019, set at that directions hearing, referred to a category of ‘any class of documents which any other party reasonably requests the party to discover’.
The ongoing exchanges between the parties in relation to discovery have essentially been directed at that category. The plaintiff submits that the defendant has been dilatory in identifying the relevant class of documents and making that request for further discovery, and now seeks to delay the trial to the plaintiff’s prejudice.
However, the case management orders also required discovery of documents that each party may produce during evidence at the trial. Expert opinion will necessarily be based upon source documents, particularly in the context of expert accounting evidence of the type under consideration. While the parties may ultimately be content to proceed at trial on the basis of the opinions in expert reports and summaries, or conclusions drawn from source accounting records without the court going to source documents, it is necessary that each party’s expert be fully informed of the source documents upon which opinions must properly be expressed. In that sense, all of these source accounting records are documents produced in evidence at the trial.
In that context, it was necessary for the plaintiff to make further discovery last month. and it cannot be said that the plaintiff stands fault free and ready for trial. Under the case management orders, that discovery ought to have been made in June last year. I do not accept the plaintiff’s characterisation of the further discovery they have recently made as being a consequence of the defendant’s failure to demand the documents they needed to instruct their expert in a more timely fashion.
In this context, it is inappropriate for the plaintiff to now demand rigid enforcement of earlier case management directions. I do not doubt that the parties, acting in a more timely and efficient way, might have resolved all of these issues within the existing directions, but that has not occurred. Particularly in a case of this sort, the just and cost effective resolution of a major issue in the proceeding, is best achieved by ensuring that the experts have operated from a common base of the relevant information available for the assessment of quantum. The plaintiff’s further discovery on 25 March 2020 was effectively drawn out of it by the defendant’s request of 27 February 2020, but it ought to have been discovered much earlier.
I am not persuaded that the plaintiff can reframe its failure to make timely discovery of all relevant documents upon which it will rely as a failure by the defendant to move efficiently to identify additional documents that it considered necessary for its loss expert to complete her report.
The plaintiff further submits that it is unnecessary for the experts to meet in a conclave and identify the issues upon which they agree or disagree. I do not accept that submission. I consider it probable that the court will be assisted by concurrent evidence from the accounting experts after a conclave between them on the assessment of loss of future profits.
The defendant’s expert has stated she will require a period of four weeks to analyse the further documents and prepare a supplementary report. In part, this period of time is required to deal with constraints imposed by community restrictions due to the COVID‑19 pandemic. I accept that it is a reasonable period for the required response. Such a period cannot be accommodated before the scheduled trial date.
I propose to vacate the trial date and adjourn the trial, to a date to be fixed by Clayton JR.
The impact of the pandemic is the second ground on which the defendant seeks an adjournment of the trial. It is not, in my view, inconsistent with the overarching obligation under the Civil Procedure Act 2010 (Vic) to extend some latitude to legal practitioners, litigants and witnesses in the circumstances of the unprecedented constraints on economic activity and freedom of movement that currently are in place in response to a pandemic. The defendant has noted practical difficulties for its solicitor and its witnesses in the present restrictions. In ordinary circumstances, the plaintiff’s contentions that other solicitors within the defendant’s solicitor’s office could have conduct of the matter, or its contention that there is effectively a level playing field, as all are subject to the restrictions, may have been persuasive.
The plaintiff does not identify any specific prejudice that it would suffer, although it is well established that delay is, of itself, prejudicial to litigants. That said, the rate of interest payable under the Penalty Interest Rate Act 1983 (Vic) in the present circumstances significantly favours the plaintiff.
I will refer the management of the proceeding back to Clayton JR, whose chambers will inform the parties of the next available trial date and the date of the next case management conference. In the context of these reasons and that trial date, the parties ought to be able to agree trial directions and submit consent orders for the same to Clayton JR.
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