Shen v Ozbaby Dairy Pty Ltd
[2015] VSC 207
•14 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2014 00662
| XIAOLI SHEN | Plaintiff |
| v | |
| OZBABY DAIRY PTY LTD (ACN 141 245 990) | First Defendant |
| LIPING ZHANG | Second Defendant |
| FANRUY SUN | Third Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2015 |
DATE OF JUDGMENT: | 14 May 2015 |
CASE MAY BE CITED AS: | Shen v Ozbaby Dairy Pty Ltd and others |
MEDIUM NEUTRAL CITATION: | [2015] VSC 207 |
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PRACTICE AND PROCEDURE – plaintiff’s application for extension of mediation date for medical reasons – evidence inadequate – application dismissed – defendant’s application to dismiss for want of prosecution – alleged intentional and contumelious default or abuse of process – not shown – application adjourned to enable default to be remedied by attendance at mediation– application for sanction by way of retrospective order that costs may be taxed immediately - not appropriate.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Strauch | Kawakami Lawyers |
| For the First Defendant | Mr Murphy, solicitor | Corrs Chambers Westgarth |
| For the Third Defendant | Mr Warner | Thomson Geer |
TABLE OF CONTENTS
Applications........................................................................................................................................ 1
History of the proceeding................................................................................................................. 1
Prosecution of the proceeding by the plaintiff............................................................................. 3
Plaintiff’s application to adjourn the mediation for medical reasons...................................... 9
The first and third defendants’ applications.............................................................................. 11
Orders................................................................................................................................................. 17
HER HONOUR:
Applications
Two summonses were returnable before me on 6 May 2015. The plaintiff, by summons filed 23 March 2015, seeks to adjourn the date previously stipulated by which mediation was to have been held. That date was 27 March 2015. Transparently, the stipulated time has already now expired. The plaintiff seeks a date after 8 June 2015 or, in the alternative, seeks an order permitting her to attend by videolink, telephone or by agent.
The third defendant, by summons filed 10 April 2015, seeks dismissal of the proceeding or retrospective leave to tax forthwith existing costs orders against the plaintiff. The third defendant makes oral application in the alternative for a self-executing order dismissing the proceeding if the plaintiff does not attend a mediation on a date now scheduled. The third defendant’s applications are supported by the first defendant.
It is first helpful to consider the history of the proceeding.
History of the proceeding
The proceeding commenced by originating motion against the first defendant only, and ex parte summons seeking a freezing order against the first defendant. That order was made on 17 February 2014. Pleadings were ordered on 11 March 2014 after the first defendant appeared. On 19 March 2014, the freezing order against the first defendant was extended to the determination of the proceeding or further order, and the second and third defendants joined. A freezing order was made initially ex parte against the third defendant on 27 March 2014 and later extended ex parte on 4 April 2014 to the determination of the proceeding or further order.
I draw the following account of the facts as asserted by the plaintiff from her statement of claim. It appears from some of the correspondence exhibited before me that the defendants may contend that this account is inconsistent with the plaintiff’s affidavit filed in support of the ex parte freezing order against the first defendant. That issue was not relied upon to support dismissal and so it is not necessary to consider it further.
The plaintiff has no registered shareholding in the first defendant but contends in her statement of claim that the third defendant, who holds all the registered shares, holds them on trust for her. Her contention is that she and the second defendant caused the first defendant to be established for the purpose of exporting Australian milk products to China. Initially the shares were all held by the second defendant, the plaintiff says on trust for her. Subsequently, the plaintiff became registered as shareholder in respect of a portion of the shares. The shares were ultimately all transferred to the third defendant. The plaintiff contends that this transfer was effected by the second defendant fraudulently and in breach of trust. The plaintiff also contends that the third defendant received the shares with knowledge of the breach of trust, and accordingly holds them all in trust for her. The plaintiff’s contentions are put on the basis of alleged financial contributions made by her.
The first defendant filed its defence on 30 April 2014. The second defendant has never been served and the proceeding against the second defendant (who was joined to the proceeding by order made 19 March 2014), would now appear to be stale.
The plaintiff obtained judgment against the third defendant in default of appearance on 28 April 2014. That judgment was subsequently set aside as irregular and indemnity costs ordered against the plaintiff by Macaulay J on 26 June 2014. The file does not disclose any order having ever been made for the filing of a defence by the third defendant, nor that the plaintiff has pressed for one. The third defendant has not filed a defence.
As noted above, the plaintiff obtained a freezing order against the third defendant until the hearing and determination of the proceeding or further order on 4 April 2014. That order prevented the third defendant from selling, disposing of, encumbering or otherwise dealing with the shares in the first defendant. It was made in the absence of the third defendant. On 13 August 2014 the plaintiff and third defendant consented to an order in the same terms.
Prosecution of the proceeding by the plaintiff
The complaint of the third defendant, supported by the first defendant, is that the plaintiff has not adequately prosecuted the proceeding, particularly given that she has obtained the penal protection of freezing orders. The first defendant notes that, even on her own account, there was already some delay at her hands before she obtained those orders. The only substantive step taken by the plaintiff since commencement of the proceeding, other than the joinder of the second and third defendants and the obtaining of further freezing orders is, so the defendants contend, the filing and service of a statement of claim on 14 March 2014.
The third defendant, whose application the first defendant adopts, complains about three matters. The first is that the plaintiff has not served the second defendant, and has provided no explanation for this failure, notwithstanding that the Court noted in the order for mediation that it would be of assistance for the second defendant to be served and attend the mediation, having been informed that he and the third defendant are co-directors of the first defendant.
The second, and the matter that directly arises in response to the plaintiff’s summons, is that the plaintiff has not complied with the order for mediation. The defendants submit that I should infer that she has put forward a false basis for seeking adjournment of the mediation, being medical grounds, with the intention of obtaining a date for mediation in the middle of this year that suited her for other reasons, perhaps an intended visit to Australia for business purposes.
The third is that the first defendant has sought without success documents from the plaintiff to support her contention that she made financial contributions to the first defendant. The only documents received are screen shots of financial records and are, the defendants contend, manifestly inadequate to support the plaintiff’s claim of contribution.
It is necessary to consider the three occasions that the matter has come before me for management in the Civil Management List to put these allegations in context.
The matter first came before me for directions on 24 November 2014. Prior to that date the directions hearing had been adjourned twice by consent. On 24 November 2014, counsel for the plaintiff sought that the directions hearing be adjourned again, on the basis that his solicitors were having difficulty in obtaining instructions from the plaintiff, who resides principally in China. My notes of that attendance indicate that the first defendant advised the court that settlement discussions were continuing. In any event, neither defendant opposed the adjournment. The Court order of that date indicates that I directed the plaintiff to obtain clear instructions as to the future progress of the matter for the next occasion.
The directions hearing was adjourned to 15 December 2014. The parties agreed before me on 6 May 2015 on the return date of the summonses that on this occasion counsel for the plaintiff alerted the other parties to medical reasons on the basis of which the plaintiff would seek a mediation not before mid‑2015.[1]
[1]Counsel for the plaintiff conceded this at T 58.15 and following, although his initial answer to my question as to when a medical issue was first raised was to refer me to the email sent in early March 2015-T 57.31-T58.4.
I have no independent recollection of that matter being raised. That, of course, is not determinative. However, I do not consider it safe to consider the summonses before me on the basis of the recollections of the parties’ legal representatives that a medical basis for adjournment was raised on 15 December 2014, because as I will show below there is no contemporaneous documentary evidence to support this recollection, and indeed the contemporaneous documentary evidence is to the contrary.
The first contemporaneous records I have considered are my notes of the directions hearing on 15 December 2014 (there being no transcript) and the order made that day. Neither record that a medical issue was raised. The detailed material that does appear in Other Matters of the order of 15 December 2014 by contrast does reflect my notes of the directions hearing. The matters reflected in my notes and the order are that the question of service on the second defendant was discussed and the consequential issue as to whether he would be required to attend the mediation. I was informed that the second and third defendants were both directors of the first defendant. It was on that basis that I indicated in Other Matters that it would be desirable for the second defendant to attend, which was of course dependent on service on him.
In the orders of 15 December 2014, I ordered that the parties attend a mediation to take place by 27 March 2015. I also listed the proceedings for directions on 16 March 2015 i.e. before the date by which mediation was to be concluded. I noted in Other Matters that ‘The purpose of the directions listing on 16 March 2015 is to ascertain if the Second Defendant has been served and will attend the mediation’.
Secondly, there is no reference to the plaintiff being unable to attend a mediation before mid‑2015 in the email correspondence in evidence before me that preceded the directions hearing held on 15 December 2014. Correspondence is exhibited to the affidavit of Jason Kean Quah sworn 10 April 2015 in a bundle marked JKQ‑6. At pages 66-73 of that bundle are exhibited emails from the solicitor for the plaintiff to each of the first and third defendants sent on 12 December 2014 attaching proposed consent orders for 15 December 2014. Those orders set out a conventional timetable commencing with further and better particulars, then discovery and mediation. The effect of those orders if made would have been that mediation would not be held before the middle of the year. The specific order proposed for mediation was that it take place not before 29 June 2015 but by 20 July 2015.
The stipulation of a particular enclosed period is not usual, and might on its face suggest that there was a particular reason for that time frame, but it was also the time frame that followed in the normal course from the preceding proposed steps. The reason for suggesting an enclosed period after the taking of the earlier steps may, of course, have been entirely innocent- for example, to facilitate the obtaining of a visa in advance.
The first defendant responded by email seeking an earlier mediation (and noting in that email that this had been raised before), and putting the proposition that discovery was not necessary. The first defendant proposed a mediation to be held by 27 February 2015.
The email of the plaintiff in reply indicated that instructions would be sought, but foreshadowed that that date may be too soon having regard to Chinese New Year holidays and the necessity for the plaintiff to have time to obtain her Australian visa. There is no reference in that email to any medical reason why the plaintiff could not attend an earlier mediation than one in the middle of the year.
If the third defendant replied to the plaintiff’s email proposing the timetable, that reply is not in evidence.
Finally, there is no reference to a medical reason for adjournment having been advanced by the plaintiff in the exhibited correspondence between the parties after that directions hearing.
The first email from the third defendant to the plaintiff after the directions hearing on 15 December 2014 does not refer to any issue of the plaintiff being unwell and for that reason being unable to attend a mediation. That email is exhibited to an earlier affidavit of Jason Quah sworn 16 March 2015 at page 1 of JKQ‑5. That email refers only to the plaintiff seeking time at the directions hearing on 15 December 2014 to obtain a visa (being a matter also raised in the plaintiff’s email of 12 December 2014). The third defendant by that email seeks confirmation as to whether or not the plaintiff intends to serve the second defendant.
In other words, this first correspondence after the 15 December 2014 directions hearing does not support the third defendant’s contention that ill‑health of the plaintiff was raised at that directions hearing. It supports what is conveyed by the order itself, namely, that the issue raised was the attendance of the second defendant.
The first documented occasion in the material before me on which the plaintiff puts the contention that for medical reasons she is unable to attend the mediation by the due date is an email dated 3 March 2015, also exhibited to Mr Quah’s affidavit sworn 16 March 2015 at page 4 of JKQ‑5. In that email the solicitor for the plaintiff attached what was described as ‘our client’s medical certificate and its English translation’ and sought agreement to postpone the mediation to the end of June 2015.
The material attached to the email is plainly inadequate. It consists of three documents in Chinese script, which are overlayed one on the other, with the consequence that the whole face of only one of the documents is apparent, together with a fourth document, which is an unauthorised translation into English. Authorised translations of the documents in Chinese script have now shown that this unauthorised translation compiles information from two or more of the three documents in Chinese script into the one document in English.
The third and first defendants made these objections known to the solicitors for the plaintiff prior to the adjourned directions hearing on 16 March 2015. Mr Quah for the third defendant in his letter of 4 March 2015 which raises these objections also refers, for the first time from the third defendant in the material before me, to the plaintiff having alerted the other parties to medical reasons for a later mediation at the December directions hearing.[2] The solicitors for the first defendant joined in these concerns by letter dated 13 March 2015 to the solicitors for the plaintiff.
[2]JKQ-5 to Mr Quah’s affidavit of 16 March 2015, at page 6.
My notes of the directions hearing on 16 March 2015 record that counsel for the plaintiff sought a further 90 days for the mediation to be held. He conceded that the current medical material in support of adjournment of the mediation (being the copy documents exhibited to the email from the plaintiff’s solicitor of 3 March 2015) was inadequate. The same counsel for the plaintiff agrees at the hearing of these summonses that he made that concession on 16 March 2015. On 16 March 2015, according to my notes, that counsel said that instructions to seek adjournment had been given to his instructors on 25 February 2015, which led to their email of 3 March 2015. He said that he was instructed that the plaintiff had further medical material to put before the Court, which was in the process of being translated.
The first and third defendants opposed any adjournment on the basis of the delay to date and inadequate medical material to support the adjournment request. By way of oral application on the basis of his affidavit filed in court, Mr Quah for the third defendant sought a self-executing order for dismissal of the proceeding if the plaintiff did not attend mediation within the existing time frame. That application was not on notice to the plaintiff.
On the basis that the plaintiff had further material to submit to support her application, and because the third defendant’s application was not on notice to her, I directed that each party make their respective applications on summons, staged in such a way as to inform the third defendant, who also resides in China and so would need to make arrangements to come to Australia for the mediation, of the plaintiff’s intentions prior to the expiry of the current date for mediation. The summonses before me on 6 May 2015 were subsequently filed broadly in accordance with those directions. Although 6 May 2015 was well after the date for mediation to conclude, it was the first date on which time was available to hear the summonses. The practical effect of that delay has been to de facto afford the plaintiff most of the time that she sought.
There was further correspondence between the parties and the Court following the directions hearing on 16 March 2015, and the issue of the summonses.[3] In particular, the first defendant immediately sought from the plaintiff, by letter dated 19 March 2015, the promised fresh medical information in authorised translation and foreshadowed an application to dismiss the proceeding for want of meaningful prosecution by the plaintiff, in particular failure to supply documents to support her contention that she had made capital contributions to the first defendant. Earlier requests for these documents in the period 23 July 2014 to 30 March 2015 are also exhibited to Mr Quah’s affidavit sworn 10 April 2015, as is the reply of the plaintiff’s solicitor of 1 April 2015 to which is attached two screen shots of account statements and an extract from a Westpac account in the name of the first defendant.
[3]Exhibited at pages 79-84 of JKQ-6 to Mr Quah’s affidavit sworn 10 April 2015.
Plaintiff’s application to adjourn the mediation for medical reasons
The material in support of the plaintiff’s summons contains no new medical information. In other words, her application is still only supported by the original overlayed documents in Chinese script, although now accompanied by an authorised English translation. That translation is to the same effect as the translation obtained by the third defendant for the directions hearing on 16 March 2015. In other words, the plaintiff has not advanced her case for adjournment of the mediation on medical grounds one jot since that date, at which time I indicated that the medical material was inadequate, and her counsel agreed. Counsel for the plaintiff informed the Court and the other parties at the hearing on 6 May 2015 that he had been in error in stating on 16 March 2015 that further medical material had been obtained. Although it is not entirely clear from the transcript of his submissions what was in fact occurring in relation to medical certificates at that time, it seems that it was only the existing documents that were in the process of being translated. Mr Strauch said that the misinformation to the Court on 16 March 2015 arose from miscommunication between him and his instructors.
The authorised translations exhibited to the affidavit of the solicitor for the plaintiff in support of her summons are of two of the three overlayed documents in Chinese script. One is headed ‘Certificate of Diagnosis’, and the other ‘Patient Record’. Both are dated 27 February 2015 and identify the same hospital, but only the ‘Certificate of Diagnosis’ bears the name of the plaintiff. There is no patient name on the ‘Patient Record’. Accordingly, I disregard the ‘Patient Record’ as it is not shown to relate to the plaintiff.
The ‘Certificate of Diagnosis’ sets out next to the word ‘Diagnosis’ three things:
1. Sequelae of cerebral concussion
2. Damaged trigeminal nerve of right-hand jaw
3.Torn ligaments at cervical vertebra and lumbar vertebra leading to blockage of meridian.
It does not set out any patient history, or account as to how these injuries were sustained. It recommends rest for three months ‘in cooperation with the treatment’. It says nothing about air travel. The only reference to avoiding air travel is in the ‘Patient Record’. That Record is not shown to be in relation to the plaintiff, and at its highest, recommends avoiding air travel ‘for the time being’, not for the period of 90 days that the unauthorised combined translation stated.
The history given by the solicitor for the plaintiff, Mr Jacky Cheung, as set out in the affidavit in support of the summons is as follows. First, that the solicitor received instructions that the plaintiff could not attend a mediation by 27 March 2015 for medical reasons by telephone on or about 21 January 2015 i.e. not before 15 December 2014, but not on 25 February 2015 as counsel for the plaintiff told the Court on 16 March 2015. Next, that the plaintiff is still suffering injuries she suffered at the hands of the second defendant in March 2013.
This account is inconsistent with the plaintiff’s affidavit sworn 14 February 2014 in support of the original freezing order against the first defendant and what is conceded to be her travel to Australia at and since that time. In that affidavit, the plaintiff set out an account of an assault by the second defendant on her in March 2013, but said that she had recovered from that assault by October 2013.[4] She swore that affidavit in Melbourne, and her counsel frankly concedes that she also was in Melbourne in June 2014. If for some reason the injuries from which she had recovered in October 2013, sufficiently to be able to travel to Australia in February and June 2014, have recurred, she does not give any account of that recurrence. The plaintiff also deposed in her affidavit of 14 February 2014 to frequent previous business travel to Australia and that she spends approximately three months of every year in Australia for business.[5]
[4]Affidavit of Xialoi Shen sworn 14 February 2014 at [62].
[5]Ibid, at [7].
The solicitor for the plaintiff deposes in the affidavit sworn 23 March 2015 that he is informed by the plaintiff and believes that the ‘Patient Record’ ‘belongs to the Plaintiff’. Further, that it is ‘one of the pages of the whole file record as provided to me by the Plaintiff’. If that is the case, then the whole of the record should have been exhibited to show that the reference to avoiding air travel in fact did relate to the plaintiff.
The plaintiff’s application is insufficiently supported by medical information. I will dismiss it with costs. The defendants are at liberty to seek indemnity costs to be taxed forthwith given the incorrect information that there was further medical information to be provided given at the directions hearing on 16 March 2015. Counsel for the plaintiff conceded at the hearing that taxation forthwith may be an appropriate order.[6]
[6]T 63.23-25.
The first and third defendants’ applications
The third defendant seeks dismissal of the proceeding for want of prosecution forthwith, in the alternative that the defendants have leave to immediately tax costs orders previously made in their favour against the plaintiff, and in the further alternative a self-executing order if the plaintiff does not attend a re-scheduled mediation. The first defendant joins in these applications.
Counsel for the third defendant described the application for dismissal for want of prosecution as being in response to an ‘invitation’ from me on 16 March 2015.[7] That description is not appropriate. Mr Quah for the third defendant made an oral application for a self-executing order for dismissal of the proceeding at that directions hearing. The orders required any such application to be on summons. They did not ‘invite’ such an application.
[7]T 10.27.
I indicated at the close of argument that I did not consider it appropriate to dismiss the proceeding forthwith, but would give further consideration to a self-executing order. I adjourned the summonses to Friday 8 May 2015 for judgment. Unfortunately, due to the press of other work I was not able to complete the judgment by that time and so vacated that date. The third defendant thereafter sought to make further submissions. That request was inappropriate as argument had concluded on all matters on 6 May 2015, including on a self-executing order.
I have now concluded that such order is also not appropriate, although I will allow the defendants to re-agitate the question of dismissal for want of prosecution if the plaintiff does not attend a re-scheduled mediation. My reasons for this view follow.
First, the courts have traditionally been reluctant to shut out a plaintiff for want of prosecution unless there has been very good cause. The test, as subsequently adopted in Victoria, was summarised by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd as follows:
The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.[8]
[8][1989] 1 AC 1197 at 1203.
The defendants here rely on the first limb of this test i.e. intentional and contumelious default or conduct amounting to abuse of process. That is a very high bar. The defendants submit that the plaintiff has not only been willing to avoid or ignore the Court’s orders, but that she has been prepared to potentially mislead the other practitioners, and, I would add, and so the Court, to engineer a result she has sought since December 2014.[9]
[9]T 33.5-13, T 39.23-27, T 50.12-T 51.6.
In my view, although the inference that the plaintiff has sought throughout to obtain a date for mediation in mid 2015 is a possible one on the evidence and submissions before me, it is by no means the only available one. It is possible, for example, that the initial proposal of the plaintiff for a mediation in June arose because it was the natural result of the timetable that she proposed. It is also possible that the plaintiff does in fact have a medical condition that made air travel unadvisable in March, but has failed to provide proper evidence of it for reasons not related to its existence. There is no positive evidence before me that the plaintiff was proposing to come to Australia in June or July to support the contention that that is why she wished to delay the mediation, or any other evidence to show a contumelious failure to comply with the order for mediation.
The defendants assert that the plaintiff has failed to comply with her obligations under the Civil Procedure Act 2010 by failing to supply critical documents.[10] If so, the most apt remedy, at least in the first instance, is an application for sanction of the plaintiff for such breach, not for dismissal of the proceeding as a whole. No such application has been made. Accordingly, I express no view as to the adequacy of the material that has been supplied. Even if such an application had been made and a breach proved, dismissal of the proceeding would be a drastic penalty for the breach, at least in the first instance. Further, the first defendant expressly indicated to the plaintiff that an order for discovery prior to mediation was not necessary.[11] It follows that the plaintiff is not in breach of an order for discovery. Finally, the first defendant, the defendant most directly aggrieved by this alleged failure, has not made any application itself on summons. The application is made by the third defendant. The first defendant supports the application, but has chosen not to make an application itself or to join in the summons.
[10]By letter dated 30 March 2015 exhibited at pages 89-90 of JKQ-6.
[11]By email sent 12 December 2014, exhibited at pages 70-71 of JKQ-6.
It follows from the above, that the only non-compliance with Court order to which the defendants can point is the plaintiff’s non-compliance with the order for mediation, without adequate explanation. As set out earlier, I do not consider that it is safe on the material before me to conclude that that failure was established prior to the date on which the plaintiff’s solicitor has deposed that she or he was instructed it could not be complied with. That date was 21 January 2015. For reasons which are not explained, the solicitor apparently did not advise the solicitors for the defendants of that issue until 3 March 2015. The date for mediation expired on 27 March 2015. On this analysis, the plaintiff has been in default of the order since 27 March 2015, and indicated an intention not to comply with it, for reasons that have not been proved, on or about 21 January 2015. At its highest, the plaintiff has been in default of Court orders since late January. This is a period of less than four months. The delay from the scheduled date for completion of mediation (27 March 2015) and the mediation I will now order is likely to be of similar or less length.
I accept the proposition of the first defendant that any delay in the prosecution of the proceeding assumes more significance given the force of a freezing order and the delay of at a least a year before seeking that order.[12] Nevertheless, in so far as delay is relied upon it is still under two years, and in so far as intentional default in compliance with a Court order is concerned, the delay is of less than four months.
[12]T 48.
Counsel for the third defendant relies on Knörr v CSIRO and ors[13] in support of his proposition that the length of the default is not necessarily determinative. At first instance, a judge in the Trial Division had dismissed the plaintiff’s case for want of prosecution after refusing his application for leave to file and serve a second further amended statement of claim, although the proceeding had only been on foot for 11 months. The judge did so on the basis that it was clear that the plaintiff, who was unrepresented, would not be able to properly plead his case so as to allow a trial to be reasonably and fairly conducted. The judgment was upheld on appeal. The Court of Appeal held that ‘the trial judge was right to conclude that if the proceeding was left on foot ‘there will be no progress’.[14]
[13][2014] VSCA 84.
[14]Ibid, at [57].
In my view, that case is distinguishable. The plaintiff in this case has pleaded a statement of claim, to which objection has not been taken, or at least not taken by application. Particulars are required, but an order for particulars was said by the first defendant not to be necessary.[15] The plaintiff has been represented throughout. Her default lies in relation to the timeliness of mediation, not in respect of proved inability to establish a fundamental aspect of a fair trial. I am not persuaded that there will be no progress if the case now continues.
[15]JKQ-6 at page 70.
Having said this, however, this is a case where the plaintiff has obtained the significant protection of freezing orders against each of the first and third defendants, and has not significantly agitated her claim since. The defendants have not shown before me any actual prejudice arising from that delay, or from the freezing orders, but freezing orders are of their very nature potentially prejudicial and a plaintiff who has obtained them is expected to prosecute his or her case with diligence thereafter. In my view, the most apt remedy in the first instance for a failure to prosecute in a timely way a claim after a freezing order has been made is discharge or variation of the freezing order, not dismissal of the whole proceeding. That is not a remedy within the power of an associate judge. Rather paradoxically, it is the more extreme remedy, dismissal for want of prosecution, that is within the power of an associate judge.
I will adjourn the third defendant’s summons for directions before me after the date of the mediation that should now be scheduled. I do so to allow the third defendant to seek to further prosecute it if the plaintiff does not attend the mediation. There is no basis on the material before me to allow attendance other than by personal attendance. In relation to the freezing orders, the third defendant may seek, by correspondence to my associate copied to all parties, that I refer that aspect of the summons to the Practice Court. The date sought may be before or after the date of the mediation. If the plaintiff does not personally attend the mediation, and fails to prove good reason for that non-attendance, she is at real risk of sanction, including possible application for discharge or variation of the freezing orders or of re-agitated application for dismissal of the proceeding.
The final matter to address is the alternative application made by the third defendant for leave now to tax forthwith costs orders already made in his favour against the plaintiff. Counsel for the third defendant did not address me in detail on this aspect of the summons, or direct me to any authority where this retrospective approach has been taken. The commentary in Civil Procedure Victoria to rule 63.20.1 gives instances where the rule has been applied, and summarises the views of the Court of Appeal in Setka v Abbott MP (No 2)[16] as to when it may apply. None of those instances show retrospective application, in respect of a costs order already made, and retrospective application would ordinarily be contrary to principle, in the absence of a clear intention in the rule to permit it. Further, retrospective application would seem to involve the variation of an order after it has been authenticated, which is possible only in very limited circumstances.
[16][2013] VSCA 376
The costs orders specifically identified in the summons are those of the 23 June 2014 and 16 March 2015. The costs orders of 23 June 2014 were consent orders made by me to reserve costs of a directions hearing, consequent on the adjournment in chambers of that directions hearing to await the outcome of the third defendant’s application to set aside the default judgment. In other words, costs were reserved, no costs order was made against the plaintiff.
I did make a costs order against the plaintiff in favour of the first and third defendants on 16 March 2015. By administrative error, that costs order does not appear in the authenticated order. That will now be corrected pursuant to the slip rule.
It is on my analysis still possible for the defendants to seek a costs order in respect of the costs reserved on 23 June 2014 and in that exercise to seek that those costs be taxable forthwith. Such an exercise may not, however, be warranted given the likely dimensions of the costs involved. It is not, on my analysis, possible for the defendants to now seek to vary the costs order made on 16 March 2015 which did not provide for the costs to be taxable forthwith, and did not give leave to the defendants to make that application at a later point in time.
There is a suggestion in the oral submissions[17] that the costs order in question was an order made by Macaulay J on 26 June 2014, consequent on his order setting aside the default judgment against the third defendant. If that is what was meant, I do not consider that I could alter a costs order made by a judge in any event.
[17]T 43.
Orders
The parties are required to draw orders to give effect to these reasons, agreed if possible. Those orders should provide for a mediation to be conducted as soon as practicable with the personal attendance of the plaintiff and the third defendant, and for the adjournment, to a date after the mediation, of the proceeding for directions and the third defendant’s summons for further hearing or directions, and for costs.
I will hear them further if those orders cannot be agreed.
In relation to costs, the appropriate order in respect of the third defendant’s summons may be to reserve costs at this stage. I will hear the parties if a different application for costs is made.
The orders should also provide for the filing and service of a defence by the third defendant. The plaintiff has not pressed for such an order, but in my view the pleadings should be complete prior to the mediation.
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