Shahin v City of Burnside

Supreme Court of South Australia
(Civil)
SHAHIN v CITY OF BURNSIDE
[2022] SASC 142
Decision of Auxiliary Judge Norman a Master of the Supreme Court
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - CASE MANAGEMENT - GENERALLY
HIGH COURT AND FEDERAL COURT - FEDERAL COURT - ORIGINAL JURISDICTION - PROCEDURE AND EVIDENCE - SUMMARY DISPOSAL AND STAY OF PROCEEDINGS
Application for orders that the proceedings be placed under a moratorium of steps or alternatively for an order that the proceedings be stayed pending the determination of taxations of costs in District Court, ERD Court and Supreme Court proceedings - consideration of principles in relation to moratorium on steps and stays - moratorium and stay refused.
Uniform Civil Rules 2020 (SA) r 64.5, r 12.1(2)(o); Supreme Court Civil Rules 2006 (SA) r 123, referred to.
In the Estate of Liu; Yan v Kong (in her capacity as Administrator of the Estate of the Deceased) & Ors [2020] SASC 143; In the Estate of a Protected Person [2022] SASC 81; UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd [2016] VSC 400; Aon Risk Services v Australian National University (2009) 239 CLR 175; Jago v District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Viscariello v Tamasauskas [2018] SASC 111; In the Matter of G, AL [2020] SASC 144; Stirling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287; Henry v Henry (1996) 185 CLR 571; CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, considered.

SHAHIN v CITY OF BURNSIDE
[2022] SASC 142
CIVIL

This is an application of the applicant dated 15 August 2022 (FDN 25) for orders that the proceedings be placed under a moratorium of steps pursuant to Uniform Civil Rules 2020 (SA) r 64.5 or alternatively for an order pursuant to UCR r 12.1(2)(o) that the proceedings be stayed pending the determination of taxations of costs in District Court, Environment Resources and Development Court and Supreme Court proceedings.
Background
The proceedings were commenced by summons filed on 5 December 2018 supported by a statement of claim filed on the same date.
They follow earlier proceedings involving the applicant and his neighbours Malcolm and Deborah Raedel (the Raedels) which arose after the Raedels had undertaken excavations and had built a retaining wall along the boundary of their respective properties at Burnside which work was undertaken without approval and had lacked a safety fence. The applicant had issued legal proceedings against the Raedels in both the District Court and in the Environment Resources and Development Court leading to a 19-day trial and a judgment by Judge McIntyre on 23 August 2017 in favour of the applicant and an award of costs on a party/party basis in his favour. The Raedels had appealed from those orders to the Full Court, but on 14 November 2019 it dismissed their appeal and awarded the applicant his costs of that appeal, also on a party/party basis.
Since that time the applicant has proceeded to have those costs taxed, both in the District Court before Master Blumberg and in this court before Judge Dart (the taxation proceedings).
In the present proceedings, the applicant alleges that the respondent, the Burnside Council, amongst other things, had made negligent misstatements to his representatives in June 2014 that the retaining wall had development approval as constructed by the Raedels when it did not; that in all the circumstances it had a duty to him to prevent him from suffering economic loss; and that it failed to take action in relation to Mr and Mrs Raedel’s breaches of the Development Act. It is further asserted that the loss and damage he claims to have incurred includes damage in the form of solicitor/client costs involved in prosecuting the District Court and Environment Resources and Development Court proceedings and in defending the Full Court appeal brought by the Raedels.
It is necessary in the context of the present application to have a close understanding of the procedural history of these proceedings, which is set out in the affidavits of Mr Andrew Bullock and Mr Wellington.
Affidavit of Mr Andrew Bullock
In Mr Andrew Bullock’s affidavit FDN 26 in support of the application he asserts that the applicant’s loss and damage claimable in these proceedings will necessarily be defined by the amount of party/party legal costs he recovers from the Raedels in the taxation proceedings. He says that whilst the recovery of costs in those taxations may be in the order of several hundred thousand dollars (with several interim allocaturs having already been paid by the Raedels in those proceedings) it is likely that there will still be a shortfall between the amount recovered from the Raedels and the amount that the applicant was forced to incur due to the actions of the respondent as alleged in these proceedings.
He asserts that these proceedings had been filed before the Full Court had delivered its judgment on the appeal proceedings because he had formed the view that there was a potential for the respondent to argue a time point about part of one of the causes of action. The applicant had formed the view that issuing the proceedings would avoid that potential issue. Mr Bullock says that following various applications the time for service of these proceedings on the respondent was extended until 21 November 2020, however due to media reports about the matter, the claim was served on the respondent with a letter dated 29 November 2019 explaining the reason for that service, and proposing that the parties agree not to take any action in these proceedings given that the applicant had not had his costs against the Raedels finally taxed or agreed. He asserts that at that time the parties had agreed to hold off any further action in these proceedings.
However, they had been enlivened, at the request of the respondent, when it filed its first defence on 17 August 2021, some 20 months after service was undertaken. Since that time, they had been adjourned by consent on several occasions, and the respondent has sought to take issue with particularisation of aspects of the applicant’s claim and on 8 June 2022 the proceedings were adjourned until 16 August 2022.
On that occasion the applicant’s counsel, Mr McCarthy, had suggested to the Court that they be placed under a moratorium of steps given the need for the finalisation of the taxation proceedings before the applicant would be able to determine the quantum of his claim in these proceedings.
Mr Andrew Bullock expressed a concern on behalf of the applicant that he would not be in a position to assess the quantum of his claim until the conclusion – or at least the very significant progression – of the taxation proceedings, because it was only once the amounts payable by the Raedels had been taxed and recovered that he would know the amount of the shortfall between the amount he had recovered and his solicitor and own client costs. Further, given the approach of the Raedels in the taxation proceedings, the applicant was in a position where he could not determine the likely shortfall and therefore could not currently assess whether the continuation of the proceedings in this Court was proportionate to the amount in dispute. Accordingly, he sought a stay or otherwise there be a moratorium on steps in these proceedings until the finalisation of the taxation proceedings.
The progress of the taxation proceedings and their status is set out in this affidavit. On 24 January 2020 the applicant’s solicitor, Mr Watts, wrote to the then-solicitor for the Raedels, Mr Grace, setting out the applicant’s claim for reimbursement of his disbursements incurred in both the trial proceedings and the appeal proceedings, constituting counsel and expert witness fees across the two actions in the amount of $730,906 including interest on disbursements of $101,580.72. However, by responding letter of 26 February 2020, Mr Grace had inter alia asserted that Mr Watts’ letter had not complied with UCR r 271, and he had objected to the claim. In the light of this response and the Raedels’ approach, the applicant had not put forward any further compromise offers to the Raedels, and had instructed his solicitor, Mr Tim Cogan, to prepare a detailed claim for costs in both the trial proceedings and the appeal proceedings. As at 11 July 2022 Master Blumberg had adjourned the taxation date on 9 September 2022 and had fixed a program for the filing of affidavit evidence. The applicant’s costs claim for the appeal proceedings was filed on 20 November 2020 in the sum of $410,728.18. On 25 November 2021 an interim allocatur was granted in favour of the applicant but the matter was further adjourned to a hearing on 17 August 2022.
Mr Cogan, representing the applicant in relation to the costs recovery told Mr Andrew Bullock that in his estimation he could not, until more of the ongoing taxation had been completed, accurately assess the status of the respective taxation proceedings insofar as a percentage of completeness was concerned, other than that the taxations were well underway.
In summary, Mr Andrew Bullock asserts that the applicant was put to considerable expense and delay during the Raedel proceedings, which has persisted in the taxation of costs in those matters, and that the precise amount of his legal costs, and consequently his losses because of the respondent’s conduct, could not be quantified until his costs had been taxed. For this reason, he sought orders staying the present proceedings until the conclusion of the taxation proceedings.
Mr Wellington’s second affidavit
The second affidavit of Mr Christopher Wellington FDN 28 in opposition to the present application likewise sets out a lengthy history and exhibits various documents. It refers to his earlier affidavit sworn on 10 August 2022, and to correspondence between the parties relating to issues in the matter including the identification of alleged deficiencies in the statement of claim. It also refers to particulars being sought by the applicant as to aspects of the respondent’s defence, and to the filing of a revised defence on 10 August 2022. Mr Wellington asserts that while taking instructions following service of these proceedings, he had identified eight persons who were employees of the respondent during the period between 2012 and 2016 relevant to the background of the claim, who might be witnesses in the proceedings. As at the time of his affidavit, five of those persons had already left the employment of the respondent, and that the longer the matter continued the more likely it would be that one or more of the remaining three witnesses might leave employment, and/or that any one or more of the eight persons might become unavailable for health or other reasons.
Exhibited to this affidavit is a letter from his firm to the applicant’s solicitor, dated 23 August 2022 noting the applicant’s present application, but indicating that the respondent’s position was that the application should be withdrawn, referring to a history of developments since notice of the claim was given.
He said that on 22 June 2017 the applicant had notified the respondent that a claim would be made and alleging that the respondent had breached a duty of care to the applicant to not cause economic loss and that it had made negligent misstatements to the applicant. This letter had referred to events occurring as early as late 2012 and to other matters occurring between March and June 2014, following which in March 2015 the applicant had instituted the District Court proceedings against the Raedels. The trial of those proceedings took place over a 20-day period between January and March 2017, but the respondent was not a party. As at 20 June 2017 the applicant had already been aware that he wished to pursue a cause of action relating to matters which had occurred as early as late 2012 or otherwise in or around June 2014. Notwithstanding this, these proceedings were not issued until 5 December 2018, nor were any steps taken to serve them at that time. On 31 January 2019 an order was made ex-parte extending time for service of the summons and statement of claim on the respondent until 4 December 2019, but they were not ultimately served until 29 November 2019. The statement of claim, comprising 22 pages and 98 paragraphs, had included several detailed assertions of factual matters dating back as far as 2009.
Mr Wellington noted that as at the time of serving the proceedings on the respondent, the applicant had indicated that as he had not yet had his costs against the Raedels taxed or agreed, he did not then require the respondent to take any action in the proceedings including filing a defence or notice of acting. That approach had been agreed to by the respondent, mainly on the basis that given the nature and breadth of the allegations made, it would have been unable to obtain full instructions to file a defence within the time required by the rules of court.
At a directions hearing on 1 February 2021 an order was made that the respondent was to file and serve its defence. On that occasion Judge Bochner made the following remarks:
There has been some delay in the taxation in the related matter and the applicant seeks an adjournment of several months as quantum in this matter cannot be ascertained until the taxation is complete. The respondent seeks to have the matter progressed on the basis that liability and quantum can be dealt with separately. The respondent notes that some of the events referred to are more than 10 years old and it is prejudiced by the ongoing delay. It is considering bringing an application for summary judgment.
At a further hearing on 17 March 2021 an order was made extending the time for the respondent to file and serve its defence. On that occasion Judge Bochner made the following remarks:
The respondent requires an extension of time to file its defence and seek instructions on whether to bring an application for summary judgment. The delay has been caused by its request for four documents which have been referred to in the applicant's statement of claim. While the applicant has no objection to providing those documents, he is concerned that they may be subject to the Harman undertaking. Out of an abundance of caution he is seeking the leave of the District Court to use those documents in this action.
The directions hearing then scheduled for 18 May 2021 had been adjourned, as an application by the applicant in the District Court for leave to use certain documents had not been heard.
At a hearing on 1 July 2021 Judge Bochner extended the time for the respondent to file its defence for a further six weeks. Her Honour made the following remarks:
The respondent requires further time to file its defence. The respondent's documents are voluminous and not in good order and it has taken both solicitors and counsel considerable time to work through the material. It has been foreshadowed again that either a strike out or summary judgment application may be brought. The respondent is reluctant to do this until they are on top of their own material. As this has been foreshadowed for some time, on the next occasion a strict time frame may be put in place for the filing of such an application. I note that there remain delays in the progress of the taxations in both the Supreme and District Courts.
The respondent’s defence was filed on 17 August 2021.
At the directions hearing on 18 August 2021 the applicant was ordered to file his reply, if advised, within 21 days. Judge Bochner observed as follows:
Time will be allowed for the applicant to file a reply. Both parties intend to seek particulars from the other. This will be dealt with informally. If any application in respect of particulars needs to be filed, it will be made returnable to the next directions hearing.
On 23 August 2021 the respondent’s solicitors wrote to the applicant’s solicitors outlining alleged deficiencies in the statement of claim.
On 29 September 2021 the applicant’s solicitors advised the respondent’s solicitors that they had been delayed in the finalisation both of their reply and their response to the letter sent to them of 23 August 2021. It was proposed that the parties agree to extend the time for the applicant to file a reply for two weeks and for the parties to bring any application for particulars for four weeks from that date.
The respondent had agreed to this proposal, and accordingly orders were made by consent extending the time for the applicant to file his reply until 13 October 2021 and for the parties to bring any applications for particulars by 27 October 2021.
On 27 October 2021 the applicant’s solicitors advised that there had been some delay in their counsel being able to settle the reply, but they envisaged that this would be filed by 1 November 2021. It was proposed that the parties agree to extend the time to bring any application for particulars by a further four weeks. The respondent agreed to that proposal and on 24 November 2021 its solicitors emailed the applicant’s solicitors asking for an update on the filing of the reply and as to the provision of further particulars which they had understood that the applicant would attend to.
The applicant’s reply was filed on 29 November 2021.
The directions hearing on 2 December 2021 the matter was adjourned to 1 February 2022. Judge Bochner made the following remarks:
A reply has now been filed which has raised a number of legal issues which the respondent requires time to consider. There is an outstanding request for particulars. The applicant has indicated that a response to this request will be provided before Christmas.
On 11 January 2022 the respondent’s solicitors wrote to the applicant’s solicitors asking for the response to the letter of 23 August 2021. In reply, on 31 January 2022 the applicant’s solicitors advised that a detailed response to the particulars requested on 23 August 2021 was “well advanced” but they were seeking input from counsel and would not be able to provide this response before the hearing on 1 February 2022, although it was anticipated that the response would be made by 4 February 2022.
Accordingly, orders were sought by consent that the applicant was to provide the response on or before 11 February 2022.
As it transpired, this was finally provided on 23 February 2022.
On the same date, the applicant wrote to the respondent’s solicitors seeking particulars of certain aspects of the defence filed on 17 August 2021.
The 1 March 2022 directions hearing was adjourned by consent to a further hearing on 28 March 2022.
On 22 March 2022 the respondent responded in detail to the applicant’s solicitor’s letter of 23 February 2022 regarding the statement of claim.
On 28 March 2022 the parties agreed to seek another administrative adjournment for about four weeks as they were dealing with requests for particulars and issues raised regarding their pleadings.
The next directions hearing was scheduled for 27 April 2022 but by agreement, the parties sought a further administrative adjournment of six weeks to enable both parties to respond to outstanding requests and this was granted. A further scheduled hearing date was fixed for 8 June 2022.
On that date, the Court was informed that the parties were still dealing with the question of particulars. However, for the first time, it was asserted, there was a suggestion that the matter be placed in a moratorium, but this suggestion was not agreed to by the respondent.
On 23 June 2022 the respondent’s solicitors wrote to the applicant’s solicitors regarding the defence. It proposed a revision of the defence which would address certain aspects of the matters raised on behalf of the applicant. In the same letter the respondent’s solicitors asked for a response to their letter of 22 March 2022 regarding the statement of claim. However, no response was given in relation to this query, or in relation to revision of the defence.

On 10 August 2022 a revised defence was filed by the respondent and its application (FDN 22) was filed seeking either a strike out of the claim or further and better particulars of the claim. This was accompanied by a supporting affidavit (FDN 23).
On 15 August 2022, the day before the next scheduled directions hearing, the applicant filed its present application (FDN 25).
In its letter of 23 August 2022, the respondent set out in detail its attitude to the applicant’s application to seek a moratorium under UCR r 64.5 or a stay under UCR r 12.1(2)(o). It was put that the timing of the application gave rise to a strong inference that it had been filed tactically to prevent argument and judgment on matters the applicant had known for months he must address – namely the pleadings/particulars issue.
Further, the respondent said that it was suffering ongoing prejudice, referring to the eight persons who had been its employees, of whom five had already left its employment. The same degree of prejudice had not applied to the applicant, who was the principal witness for his own case. The factual background to the claim had commenced in 2009, 13 years previously and the matter had proceeded slowly. The applicant had been guilty of delay in relation to the pleadings and particulars issues, and until pleadings were finalised, discovery would not occur, which was itself likely to be a substantial exercise. Following discovery, the parties would need to consider the obtaining of experts reports and the issue and delivery of notices to admit. All these matters were dependent on the pleadings being complete. There was no proper reason why these should not be finalised without delay. The applicant was called upon to withdraw its present application.
A directions hearing was held before Judge Bochner on 16 August 2022. Her Honour noted that an application for particulars was before the Court but that she would hear the stay application first on the basis that if it was granted there was a real likelihood that the applicant would amend the statement of claim after the taxation proceedings had been finalised which might obviate the need to deal with the particulars application. A program was fixed for the hearing and determination of the present application and it was listed for argument on 6 October 2022.
Applicant’s submissions
Mr McCarthy made oral submissions and supported this with a written outline of argument. He referred to UCR r 64.5 relating to a moratorium and UCR r 12.1(2)(o) relating to a stay of proceedings and read Mr Andrew Bullock’s affidavit setting out the factual basis for the application. He said that since the appeal the applicant had been attempting to finalise the taxations of his costs but until these were undertaken and completed, he would be unable finalise the quantification of his claim. Mr Cogan had been unable to accurately say when those taxations would be completed.
If the applicant could have avoided issuing and serving the proceedings until after the completion of the taxations he would have done so, but the limitation of actions legislation meant that he had to issue. Whilst the time to serve after issue had been extended, there was a limit to the number of extensions available, and furthermore there had been media attention about the proceedings which had necessitated the need for his client to serve the respondent. However, it had been content for the proceedings to remain in abeyance until the time when it re‑enlivened the proceedings at the hearing on 27 January 2021.
He said that these proceedings were dependent proceedings because the applicant could not fully plead his case until the outcome of the taxation proceedings was known. Such a situation enlivened the discretion to grant a moratorium or stay.
In respect to the exercise of the Court’s discretion, as to a moratorium or stay, their purpose was to minimise the parties’ costs and to make proper use of its resources. It was inevitable that the applicant would have to amend after the taxations were completed and the costs and resources would be best used by dealing with particulars and pleadings arguments after amendment of the claim on all issues following the completion of the taxations, then the Court would only be faced with one tranche of arguments if still occurring after the amendments. He said that if the matter now proceeded arguments would be heard concerning the applicant’s pleadings which the Court would determine but there would be further amendments, possibly further pleadings arguments once the taxations were completed. If the Court proceeded it was possible that the matter might otherwise be ready to be listed for trial, however the fact remained that it could not be finalised whilst the parties awaited the result of the taxations. Under the UCR a trial could not in the usual course be listed if the matter was not ready, but if it was listed regardless, then the applicant would be prohibited pursuant to UCR 151.12 from any pre-trial steps and would not be allowed to amend. Neither party could be certain that full discovery had been made until the pleadings were closed, and there was no point doing that step twice more.
The applicant would agree to terms being imposed by the Court, namely that any moratorium or stay would be temporary and would only apply until the taxation proceedings were complete, and he would as far as able ensure that the taxation proceedings were not delayed. He envisaged reporting to the Court and the respondent by an administrative note, for example every three to four months, as to what was occurring, with liberty for the respondent to apply.
The history of the proceedings indicated that a moratorium or stay was appropriate.
Mr McCarthy conceded that a moratorium was usually put into effect by election of an applicant early in an action but submitted such an election was still possible under the rule in cases such as in the circumstances of the current proceedings. Although a defence had already been filed, the necessary form seeking a moratorium and stay, and a supporting affidavit, had been filed and served (these are identified in the applicant’s written submissions as FDN 25 and FDN 26). Once a matter was placed under a moratorium, the effect on the action did not appear to be any different to that of a temporary or interim stay, other than that the only application that could then be made was one to remove the action from the moratorium. As to a stay, although it was usual for a respondent to apply, there was no limitation on an applicant’s right to apply.
Mr McCarthy denied that his client’s application was tactical, and he said that there was no collateral purpose.
As to the issue concerning the respondent’s witnesses, he submitted that there was no suggestion that they were unavailable, nor of prejudice or an inability to conduct the respondent’s defence at trial. There might be some inconvenience, but that occurred in cases of all trials where witnesses were taken away from their usual activities in preparing for and giving evidence in the case.
Finally, Mr McCarthy submitted that there was no restriction on either party bringing such an application. He referred in this regard to In the Estate of Liu; Yan v Kong (in her capacity as Administrator of the Estate of the Deceased) & Ors[1] and to In the Estate of a Protected Person.[2]
[1] [2020] SASC 143.
[2] [2022] SASC 81.
Respondent’s submissions
Mr P Bullock made oral submissions and relied also on written submissions dated 25 October 2022 (FDN 30). He noted that the proceedings had been commenced on 5 December 2018 but almost four years later the pleadings had not been finalised and the parties had not made discovery. Now the applicant had sought to prevent further progress for an indeterminant period.
He opposed the application on numerous grounds, including that there was no power under the UCR for an applicant to elect to impose, or the Court to order, a moratorium at the present stage of the proceedings. He submitted that the case had no features requiring a stay, that the application was contrary to the Rules, that there had already effectively been a “moratorium” in the matter, that the Court had already considered that this should not continue and the matter should progress, that there was no utility in the application, that there were numerous significant steps which could nevertheless now be advanced, that any difficulties by reason of the taxations of costs could be accommodated, that there was an unexplained delay in bringing the application, that there was real and ongoing prejudice to the respondent by reason of delays to date, and finally that here was cause for concern that the application was purely tactical.
He argued that the moratorium rule UCR r 64.5 was not intended to permit an applicant to impose a moratorium at an arbitrary stage of proceedings and after a matter had progressed beyond the filing of a claim, nor was there power in the rule for the Court to order that there be a moratorium at all.
Addressing the principles relating to the order for a stay, he accepted that the applicant’s authorities were relevant to the exercise of the Court’s power and that that in limited circumstances it might stay proceedings on the application of an applicant. However, the principles outlined in those authorities broadly supported the respondent’s, rather than the applicant’s, position. They were set out in UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd.[3]
[3] [2016] VSC 400 at [29].
He submitted that the fact of which proceeding was commenced first implicitly related to multiple proceedings between the same parties so it was irrelevant here. In relation to the determination of one proceeding being likely to have a material effect on the other, it was the case that while the finalisation of the taxation proceedings was a necessary precondition to the finalisation of the present proceeding, this did not impede the matter proceeding towards trial. There was a clear public interest in this proceeding not being delayed indefinitely, referring to Aon Risk Services v Australian National University.[4] The undesirability of two courts competing to see which determined common facts first issue did not arise. Nor did the consideration of circumstances relating to witnesses, or work undertaken on pleadings, particulars, discovery, interrogatories, and preparation, as these would not be wasted because they contained virtually no overlap with the precise quantum of the applicant’s claim. The taxation proceedings were almost complete and while the present proceedings were some way from listing for trial this factor weighed strongly against a stay. There were no real advantages at all to a stay, whereas in contrast there was a significant prejudice to the respondent.
[4] (2009) 239 CLR 175.
Mr P Bullock referred to In the Estate of Hongtao Liu[5] where Stanley J remarked that it was unusual for the party who had invoked the Court’s jurisdiction to seek a stay and had refused one in the circumstances of that case. Given the closely analogous circumstances the Court here should now proceed in the same way.
[5] [2020] SASC 143.
The objects of the Rules were to facilitate the efficient, timely, costs effective and proportionate resolution or determination of issues in proceedings and it was inappropriate to permit further delay. The applicant’s overarching obligation was to use reasonable endeavours to ensure that the time and costs incurred were reasonable and proportionate, and to act promptly and to minimise delay, whereas contrary to these obligations he had allowed the proceedings to take up a very substantial amount of time and he had failed to act promptly when required to take steps under the Rules or orders. Judge Bochner had determined that that situation should not continue but the applicant was now relying on precisely the same material as before and the Court should not lightly revisit that question absent some significant change in the circumstances of the matter.
There were numerous steps now to be taken which would advance the matter without any prejudice to the applicant, relating to particulars, strike out, discovery waiver of privilege, expert evidence, and notices to admit. These might take months and there was no benefit in their being delayed. When the taxation concluded the applicant could straightforwardly amend his statement of claim to plead the outcome and its consequences and this was unlikely to be opposed as it was essentially a mathematical calculation which would not radically alter the nature of the dispute.
Finally, there was no explanation as to the delay in bringing the application. It could have been made almost a year earlier, it was prejudicial to the respondent, and it was tactical in nature, as could be seen from its timing - being filed immediately after the respondent had filed an application in relation to the applicant’s pleading. The prejudice to the respondent of continued delay clearly outweighed any benefit to the applicant and the application should be dismissed with costs with the pleadings application being referred for argument.
Principles
Stay of proceedings
The Court may order a stay of proceedings under its general judicial powers as provided in UCR r 12.1(2)(o). A stay may be granted when the interests of the administration of justice demand it: Jago v District Court of New South Wales.[6] In Williams v Spautz[7] the majority of the High Court held that the onus of satisfying the Court that a stay should be ordered was the moving party.
[6] (1989) 168 CLR 23.
[7] (1992) 174 CLR 509.
The case law does not confirm a presumption that it can only be a respondent that can apply for proceedings to be stayed. In his decision in In the Estate of Liu[8] where the plaintiff had applied to stay her own action. Stanley J addressed the point, noting that an applicant can apply to stay for her own proceedings, and in In the Estate of a Protected Person[9] Judge Bochner did not find any restriction from an applicant applying to stay his or her proceedings.
[8] Supra.
[9] Supra.
In Viscariello v Tamasauskas[10] Doyle J dealt with the Court’s power to stay proceedings under the Supreme Court Rules 2006 (SA) r 192. While these rules were different, the applicant has submitted that the test is not materially different between that rule and the current UCR. SCR r 192 provided “if the justice of the case so requires”. UCR 12.1 provides that the Court may “make any order that it considers appropriate in the interests of justice”.
[10] [2018] SASC 111.
In Viscariello, Doyle J held at [23]-[25]:
The power to order a stay of proceedings is not conditioned upon any threshold finding of prejudice or abuse of process. While not lightly exercised, the Court has a wide discretion, conditioned only upon what the justice of the case requires. The discretion requires a balancing exercise having regard to all factors relevant to doing justice between the parties.
Without intending in any way to be comprehensive or exhaustive, the circumstances in which a stay of proceedings might be warranted include where such an order is necessary to prevent an abuse of process, or to ensure the fair conduct of proceedings. A stay might also be appropriate where it is necessary to ensure the efficient or expedient use of the parties’ and court’s time and resources.
The existence of other legal proceedings, particularly where they are related or overlap in terms of the parties or issues involved, will often be a relevant consideration. The nature of those other proceedings, and their relationship with the subject proceedings, may justify a conclusion that the conduct of the subject proceedings would involve an abuse of process, would jeopardise the fair conduct of one or other set of proceedings, or would result in an inefficient use of the parties’ or the court’s time and resources. Of course, consideration must also be given to any competing considerations arising from the parties’ general entitlement to pursue their legal rights through litigation. And even if the circumstances justify a stay of the subject proceedings, the justice of the case might only require a temporary rather than permanent stay.
[footnote omitted]
The decision in Viscariello v Tamasauskas was followed in In the Matter of G, AL[11] by Stanley J at [37]-[39]:
While the nature of other proceedings and their relationship with the subject proceedings may justify the grant of a stay, as Doyle J recognised in Viscariello v Tamasauskas, consideration must also be given to any competing considerations arising from the parties’ general entitlement to pursue their legal rights through litigation. Where a temporary stay is sought because of the existence of other related or overlapping proceedings, the discretion to grant a stay is enlivened by, inter alia, dependent or competing proceedings.
Dependent proceedings are where a plaintiff in one action cannot fully plead its case, or a defendant in that proceeding cannot properly defend itself, until the outcome of the other proceedings is known. In other words, one case cannot fairly and effectively proceed until the other has been determined. Competing proceedings are where the proceedings pending in one court are between the same, or related parties, and involve the same claims as the proceedings in another court.
These are not competing proceedings but they are dependent proceedings. However, that conclusion merely enlivens the Court’s discretion to stay proceedings, it does not determine it. On the contrary, in this case it is the Tribunal proceedings that cannot fairly proceed until the action in this Court has been decided.
[footnote omitted]
[11] [2020] SASC 144.
In Viscariello v Tamasauskas, Doyle J had referred to, cited and applied at [25] the Victorian case of UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd.[12] In that case Hargrave J had considered the Court’s inherent power to stay proceedings and had stated at [27]-[29] as follows:
[12] [2016] VSC 400.
It is first necessary to note that there is a substantial difference between an application for a permanent stay, and an application for a temporary stay or adjournment pending the completion of other proceedings which are likely to impact the outcome of the proceeding in question. In Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd, Lockhart J pointed to the difference between the two forms of stay:
There is obviously a substantial difference between a motion for a permanent stay or dismissal of a proceeding and a notice of motion for a temporary stay or lengthy adjournment of a case … The court remains in full control of the proceeding before it when it is stayed only temporarily …
Earlier, Lockhart J stated:
The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances, including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first …
Lockhart J then proceeded to list a catalogue of factors to be taken into account by a court in considering whether to grant a temporary stay pending the determination of proceedings in another court involving the same or substantially similar issues:
In my opinion, relevant considerations to be taken into account in the present case include the following:
[1] Which proceeding was commenced first.
[2] Whether the [de]termination of one proceeding is likely to have a material effect on the other.
[3] The public interest.
[4] The undesirability of two courts competing to see which of them determines common facts first.
[5] Consideration of circumstances relating to witnesses.
[6] Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted [if the stay is not granted].
[7] The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
[8] How advanced the proceedings are in each court.
[9] The [application of the principle that the] law should strive against permitting multiplicity of proceedings in relation to similar issues.
[10] Generally balancing the advantages and disadvantages to each party.

The power to grant a temporary stay is also recognized: Stirling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd,[13] Lockhart J, referred to by Hargrave J in UDP Holdings, and also referred to with approval by the High Court of Australia in Henry v Henry[14] and also in CSR Ltd v Cigna Insurance Australia Ltd.[15]
[13] (1992) 34 FCR 287.
[14] (1996) 185 CLR 571, 590.
[15] (1997) 189 CLR 345, 390 (footnote 98).
Moratorium on Steps
The moratorium on steps process is comparatively recent and appears to be unique to South Australia. It was originally introduced by Amendment No 26 (Amendment No 28 in the District Court) as part of r 123 of the Supreme Court Rules 2006 (SA) (“SCR”) relating to “Inactive Actions” and came into effect on 1 October 2014. It provided a new sub rule 123 (5) to the following effect:
(5)If the plaintiff files and serves with the originating process a notice in an approved form stating that the plaintiff does not intend to take any further steps in the action until after the action is removed from the list of inactive cases, the action will be entered in the list of inactive cases but will not be liable to be dismissed under subrule (4) and—
(a)     the defendant is not required to file and serve an address for service or defence and the time for the defendant to take any step in the action as against the plaintiff does not begin to run;
(b)     the plaintiff is not entitled to seek default judgment;
(c)     no party is entitled to take any steps in the action;
unless and until the Court makes an order removing the action from the list of inactive cases on the application of a party having given to all parties at least 14 calendar days written notice.
Largely, the purpose of subr (5) was to overcome the difficulty faced by (then) plaintiffs in personal injuries claims who by reason of limitation of actions provisions were forced to issue proceedings notwithstanding the need for them to wait for their injuries to stabilise. Prior to the change in the rules the common practice was for a plaintiff to issue, but not serve, the proceedings, and to apply from time to time for extensions of time to serve, often involving multiple extensions which involved additional resources to the issuing party and to the Court, and often had the effect of the defendant not being aware of the fact of the proceedings.
The terms of subr (5) were introduced to obviate these difficulties. Its provisions were first that the moratorium could only be sought by a plaintiff, and not a defendant, and secondly it required that that the notice putting the moratorium into effect was to be filed simultaneously with the filing and service of the originating process, and not later.
The UCR equivalent, r 64.5 is in different terms. It provides as follows:
64.5—Moratorium on steps
(1)    An applicant may elect, on or after filing a claim, to place the claim under a moratorium by filing and serving an election in the prescribed form and filing an affidavit of proof of service deposing to service of the Claim documents and the election document.
Prescribed forms—
Form 15B Election – Moratorium on Steps
Form 42 Affidavit of Proof of Service
Form 43 Affidavit of Proof of Personal Service on an Individual by Sheriff’s Officer
Note—
If no affidavit of proof of service of the Form 15B is filed, the proceeding will remain liable to be placed in the list of inactive cases even though the Form 15B has been filed.
(2)     While a claim remains under a moratorium—
(a)     it is not liable to be placed in the list of inactive cases under rule 64.2 or dismissed under rule 64.3 (but this does not affect the power of the Court to dismiss it on a different basis);
(b)     the other parties are not required to file a defence and the time for them to take any step in the proceeding against the applicant does not begin to run;
(c)     the applicant is not entitled to seek default judgment; and
(d)     no party is entitled to take any step in the proceeding (except applying to remove it from the moratorium).
Note—
Although the time for filing a cross claim under rule 65.2 will not run, the fact that the claim has been placed under a moratorium will not stop time running for the purpose of any applicable statutory time limit.
(3)     The Court may order that a claim be removed from the moratorium.
(4) Unless the Court otherwise orders, an application for an order under subrule (4) must be made on at least 14 days’ notice to each other party.
It is noted that subr (2) effectively “quarantines’ the matter once it remains under a moratorium and subrs (3) and (4) set out a process for removal of a claim from a moratorium.
Notwithstanding the change in wording in subr (1), the purpose and effect of the rule is the same as its predecessor, that is, to avoid difficulties of a party issuing proceedings arising from limitation periods when it is not ready to proceed, but to otherwise prevent the progression of the matter, and thus the usual costs and burdens associated with ongoing proceedings.
Consideration
Moratorium on steps
In the applicant’s written submissions, it was indicated[16] that the necessary forms and affidavit as to a moratorium had been filed and served (identifying these as FDNs 25 and 26). In his oral submissions[17] Mr McCarthy likewise submitted that the election form and affidavit had been filed (although he had not personally seen them). However, the documents FDN 25 and FDN 26 comprising the present application and its supporting affidavit of Mr Andrew Bullock are not the appropriate documents to initiate a moratorium.
[16] At [9.7].
[17] T23.20-21, 6 October 2022.
The correct forms to elect for a moratorium are in the case of the SCR, a Form 7 “Notice to Defendant of Moratorium on Steps” (as provided in Schedule 3 Approved Forms to the Supreme Court Supplementary Rules 2014) and in the case of the UCR, a Form 15 B “Election - Moratorium on Steps” (as referred to in UCR r 64.5 (1) and provided in Schedule 7 “Originating Process” to the UCR.)
SCR 123 did not provide for the filing of an affidavit, but UCR requires the filing of a supporting affidavit of proof of service deposing to service of the claim documents and the election document, this is in Form 42. Again, the supporting affidavit of Mr Andrew Bullock here is not in that form, rather it is an affidavit in Form 12.
Accordingly, there has been no appropriate election for a moratorium to be made in compliance with either the SCR or the UCR. No dispensation with the rules has been sought.
Further, nothing in either rule indicates an intention that the Court in the sense of a judge or master might impose a moratorium. To the contrary, its clear structure is that an applicant may make an election. The election is an administrative process only, undertaken in the registry. The Court’s power under both the SCR and the UCR is limited to the removal of the claim from the moratorium and it is only at this stage that judicial intervention is required.
It is important that the correct processes as to entry into of a moratorium are undertaken. Anecdotal information indicates instances where the filing of an election is not accompanied by an affidavit of service as required, and matters in consequence being entered into the inactive cases list pursuant to UCR r 64.2 and later dismissed by the Registrar pursuant to UCR r 64.3.
I find that no application for a moratorium has been properly made and insofar as it is sought pursuant to UCR r 64.5(1) this is misconceived as there has not been compliance with this subrule.
If I am in error in coming to the above conclusions, I have considered whether an order should be made for a moratorium on its merits. Counsel have addressed contrary submissions on the provisions of the moratorium rule, as are set out below. As far as I am aware, there has been no case law on the moratorium of steps provisions of either the SCR or the UCR.
As can be seen in the wording of the SCR and UCR provisions for a moratorium on steps, a difference of significance appears in the latter rule. In lieu of the SCR provision that the entry into the moratorium be “filed and served with the originating process”, the UCR equivalent provides that “An applicant may elect, on or after filing a claim” (emphases added). The words “or after” appear to suggest that there is no prohibition on an applicant electing for a moratorium at a time later than the time of filing of the claim. The Cambridge Dictionary meaning of the word “after” means “following in time or place” and is not limited in terms of that time.
In his submissions Mr McCarthy argued that the moratorium could now be imposed at any time after the proceedings were filed.
In his submissions, however, Mr P Bullock argued that the intention of the rule was that an applicant was permitted to elect to place a claim under a moratorium only upon or shortly after the filing of the claim. His reasons first were that both the claim and election document had to have been filed and served, that is, the requirement was in substance only the bare fact of the commencement of proceedings; secondly, that the consequence of an election was that other parties were not required to file a defence (which necessarily implied that a defence had not yet have been filed (r 64.5(2)(b)); and thirdly a further consequence of an election was that no party could take any step in the proceeding except applying to have it removed (r 64.5(2)(d)). Such a prohibition would be undermined if a party could take as many steps as it wished to take and then elect for a moratorium, he submitted. The purpose of the moratorium rule would be undermined if an applicant could file proceedings, progress them, impose the burdens of defending a claim on a respondent, and then simply freeze the proceedings at some later stage. Were a moratorium to be imposed at a later stage, then UCR rr 64.5(2)(b) and 64.5(2)(d) would be nonsensical, because they would excuse or prohibit steps which might have already been taken in the proceedings.
There is some force in Mr Bullock’s submissions, but the fact is that the terms of the rule were specifically changed in the UCR by the insertion of the additional words “or after” in relation to the filing of a claim, and this change must be given effect. Those words have not been qualified in any way, such as to mean “shortly after” which the respondent referred to in paragraph 4 of its written submissions.
It seems to me that the resolution of this conflict between the wording of the moratorium rule and its purpose rests in the Court’s power pursuant to UCR r 64.5(3) to order that a claim be removed from the moratorium. If the reason for seeking a moratorium at a stage later than the filing and service of the claim is found by the Court to be appropriate - for example if in a personal injury claim the applicant’s injuries become unstable such that the claim cannot be pursued for a period, the Court may order that the moratorium continue. However, if the moratorium is entered into for an inappropriate purpose, such as for tactical reasons only, then it may be likely that it will remove the claim from the moratorium.
In the present instance, for the same reasons which follow in relation to the application for a stay, insofar as may be necessary I refuse to order a moratorium on steps.
Stay of proceedings
The applicant’s position in support of his application for a stay is that he has been attempting to finalise the taxations of his costs but until this is undertaken and completed (and it cannot be accurately stated when this will occur) he will be unable to finalise the quantification of his claim. He had been unable to avoid issuing and serving the proceedings due to limitation issues, they were dependent proceedings because he could not fully plead his case until the outcome of the taxations was known, and there were numerous other reasons as articulated in his submissions. He denied that the application was tactical or that there was a collateral purpose, and there was no suggestion that the respondent’s witnesses were unavailable, or of prejudice or an inability of it to conduct its defence at trial.
It is clear a stay can be sought by an applicant in appropriate cases, this is acknowledged by the respondent and confirmed by case law on point: In the Estate of Liu; Yan v Kong.[18]
[18] Supra.
I have considered the application of the factors relevant to the application of a stay as referred to in UDP Holdings Pty Ltd v Ironshore Corporate Capital Ltd[19] insofar as they are relevant to these proceedings. Other factors set out in that case do not apply here.
[19] Supra.
The first factor is whether the determination of one proceeding is likely to have a material effect of the other. Although the finalisation of the taxation of costs is a necessary precondition to the finalisation of the present proceedings, this will not have any great effect on the progression of the proceeding towards trial, for example, the ability of the parties to plead the vast majority of their cases, or to make discovery on issues other than in relation to one component only of the applicant’s claim for damages (the set off to the claim for legal costs incurred).
The second factor is the public interest. There is a clear public interest in this proceeding not being delayed indefinitely, as such delay would be contrary to the efficient and prompt disposition of litigation making use of scarce public resources, as set out by the High Court in Aon Risk Services v Australian National University.[20] Unresolved litigation creates an element of financial uncertainty for a governmental body with limited resources.
[20] (2009) 239 CLR 175.
The third factor is whether work done on pleadings, particulars, discovery, interrogatories, and preparation might be wasted if the stay is not granted. However, there is no risk of this occurring here, as work of this kind can be advanced with virtually no overlap with the only uncertain question, namely the precise quantum of the applicant’s claim.
The fourth factor is the issue of it being undesirable for actions to run in two courts involving substantially the same issues. To the extent that this issue arises here, it is the applicant who has commenced both actions, and it is he who had sought the stay, so this factor does not support his application.
The fifth factor is the issue of how advanced the proceedings are in each court. Although it is not entirely clear, especially noting Mr Cogan’s views, the taxation proceedings are well under way, while the present proceedings have some distance to travel before they will be ready for trial, and they can meaningfully progress while the forthcoming stages of the taxations are completed. These include the resolution of issues of particulars and/or the striking out of existing pleadings, the making of discovery including dealing with questions of waiver of privilege which may arise, the obtaining of expert evidence, and the issue of notices to admit. These processes might take months, and there is no benefit in delaying their progress. The Court can list and determine the respondent’s interlocutory application in relation to pleadings without any difficulty. It is unlikely that there will be a need to repeat interlocutory processes, and any minor pleadings issues relating to quantum can be dealt with to the extent necessary in a very short hearing. The discovery process should not be different merely because the precise figures arising from the taxation are not currently known, as most of the pleaded matters relate to liability and not quantum. When the taxations do conclude, it will be a straightforward matter for the applicant to amend the statement of claim to plead the outcome, which is essentially a mathematical exercise rather than something that has the capacity to radically alter the nature of the dispute. When all the interlocutory matters are dealt with, the question of the progression of the matter to trial can be revisited in light of the status of the taxation process at that time.
The sixth factor is the balancing of the advantages and disadvantages to each party. The only advantage to the applicant is to ascertain the final quantum of his claim, whereas there is a significant prejudice to the respondent. It has already lost access to some witnesses, as has been set out in Mr Wellington’s second affidavit, and it is inevitable that this issue will become more significant the longer the resolution of the matter is delayed. Pleadings and discovery have not been completed and this potentially further exacerbates the challenge for the respondent to identify and marshal its potential witnesses. As has been established in evidence, the underlying matters occurred up to 13 years ago and even if all witnesses are available, it might well be expected that their memories of what was initially a minor planning and compliance issue will have faded. Four years have already passed since the applicant commenced these proceedings, and a further delay of unknown duration will inevitably prejudice the respondent, such as was the case in Liu, where Stanley J refused a stay application of the plaintiff. The applicant has not explained how the prejudice to the respondent arising from further delay can be avoided.
Other considerations are also relevant. The objects of the Rules are to facilitate the efficient, timely, costs effective and proportionate resolution or determination of the issues in proceedings: UCR r 1.5. The applicant has an overarching obligation to use reasonable endeavours to ensure that the time and costs incurred in the proceeding are reasonable and proportionate - UCR r 3.1(1)(h) - and to use reasonable endeavours to act promptly and to minimise delay – UCR r 3.1(1)(k). This action has been on foot for almost four years, and further delay is inappropriate. The applicant has already had the benefit of a de facto moratorium of some length in the proceeding, as is set out in the history analysed above.
It is also important to note that the Court has already considered this issue. On 1 February 2021 Judge Bochner made orders for the filing of a defence by the respondent, refused the lengthy adjournment sought by the applicant, and observing that there had been delays in the taxation, the concerns of the respondent, the fact that it had sought to have the matter progressed on the basis that liability and quantum could be dealt with separately, that some of the events referred to were more than 10 years old, and that it was prejudiced by the ongoing delay. Her Honour refused the lengthy adjournment sought by the applicant. The Court should not lightly revisit this question absent some significant change in the circumstances of the matter.
One of the grounds relied on by the applicant is that he cannot currently determine whether a continuation of the proceeding in the Supreme Court is proportionate to the amount in dispute. It may be appropriate for him at some stage to consider an application to transfer the proceeding to another court, however the Rules are now harmonised between the three levels of courts and the question of the appropriate court can be revisited once the taxation reaches a conclusion.
A further issue for consideration is the timing of the application. The applicant engaged in detail with the respondent concerning pleadings between August 2021 and August 2022, expending considerable resources on this issue. It is unexplained why the application has been issued at this point, rather than at several earlier hearings where it could have been foreshadowed, or in correspondence (other than a single reference at the most recent directions hearing). It is clearly arguable that the application is tactical in nature, noting that it was filed immediately after the respondent filed its application in relation to the applicant’s pleading.
I have concluded in all the circumstances that the case does not have any features supporting the imposition of a stay. The application is contrary to the objectives of the rules, there has in substance already been a de facto “moratorium” in the matter, the court has already determined that the matter should proceed, there is no utility in the application because it only relates to an adjustment of the amount of one component of the applicant’s claim for damages, there are numerous significant steps which can be advanced with no prejudice to the applicant, any difficulties arising from the delay in the taxations can be managed with minor variations to the case management process, there has been a significant and unexplained delay in bringing the application, there is real and ongoing prejudice to the respondent arising from delays already, and there is cause for concern that the application has been purely tactical.
Orders
1.The court finds that there has been no appropriate application for a moratorium and insofar as the applicant seeks an order that the proceedings be placed under a moratorium pursuant to UCR r 64.5 it is refused.
2.The applicant’s application FDN 25 insofar as he seeks a stay of the proceedings pursuant to UCR r 12.1(2)(o) is refused.
3.The matter is referred to a directions hearing on Friday 16 December 2022 at 9.45am when the question of costs, the listing of FDN 22 for argument, and any other matters sought to be raised will be considered.

[2022] SASC 142

30 November 2022