Vict v CFMMEU (Ruling No 3)
[2021] VSC 16
•28 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2017 04871
| VICTORIA INTERNATIONAL CONTAINER TERMINAL (T/A VICT) | Plaintiff |
| v | |
| CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2020 |
DATE OF RULING: | 28 January 2021 |
CASE MAY BE CITED AS: | VICT v CFMMEU (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 16 |
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COSTS – Delay in prosecuting the proceeding – Inordinate delay of almost one and a half years – No proper explanation for the delay – General prejudice – No specific prejudice occasioned by the delay – Wasted costs – Wasted solicitor’s costs in reviewing the file after the inordinate delay – Counsel’s costs considered in costs of, incidental to and occasioned by the defendant’s summons – Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 – Gippsreal Ltd v Kenny (2016) 52 VR 149 – Civil Procedure Act 2010 (Vic) ss 9, 25, 28, 29 – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.02.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Wood AM QC with Mr A G Manos | Seyfarth Shaw Australia |
| For the Defendant | Ms R Doyle SC with Ms L Doust | Maurice Blackburn Lawyers |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
Defendant’s submissions on costs.................................................................................................. 4
Plaintiff’s submissions on costs...................................................................................................... 6
Applicable principles........................................................................................................................ 8
Analysis.............................................................................................................................................. 12
Prejudice....................................................................................................................................... 15
Wasted Costs................................................................................................................................ 16
Conclusion......................................................................................................................................... 17
HER HONOUR:
For almost one and a half years, the plaintiff took no substantive steps to agitate this proceeding. The issue to be determined here is whether or not the plaintiff should pay the defendant’s wasted costs as a consequence of the plaintiff’s delay in prosecuting the proceeding between 8 January 2019 and 2 July 2020.[1]
[1]The defendant’s summons filed on 10 November 2020 [1].
Summary
The plaintiff ought pay the defendant’s wasted costs: specifically those relating to the defendant’s solicitor’s reviewing the file upon the plaintiff seeking to re-agitate the proceeding. The costs of the defendant’s counsel will be determined after hearing the parties’ submissions concerning the costs of the summons.
Background
On 19 December 2018, McDonald J published a judgment in this proceeding (‘contempt judgment’).[2] His Honour held that the conduct of three officials of the defendant constituted civil contempt and that the defendant ought pay a penalty of $125,000. Orders made on 19 December 2018 required the defendant pay the plaintiff’s costs on an indemnity basis.
[2]VICT v CFMMEU [2018] VSC 794.
The contempt judgment contains the background to this proceeding.
Approximately three weeks after the contempt judgment, namely on 8 January 2019, the plaintiff filed affidavits of service in respect of subpoenas it had caused to be issued in December 2018. After that, there were no documents filed for almost one and a half years.
Save for some correspondence with subpoenaed parties in January and February 2019,[3] the plaintiff did not take steps to prosecute the proceeding. Without the dates of that correspondence in evidence, it is preferable to calculate the delay from the period of 8 January 2019 to 2 July 2020. This was a delay of almost one and a half years, that is, almost 18 months. Even on the plaintiff’s calculation, which excludes February 2019 at one end and July 2020 at the other, the delay is 16 months.
[3]Affidavit of Christopher Paul Gardner sworn on 23 November 2020 [101] (‘Gardner affidavit’). This correspondence was not in evidence and the precise dates are unknown.
By letter dated 2 July 2020, the plaintiff’s solicitor wrote to the defendant’s solicitor seeking the matter be listed for trial and alleging that the plaintiff’s losses were estimated at $80 million derived from lost commercial opportunities as a result of the alleged tortious conduct of the defendant (‘2 July 2020 letter’).[4]
[4]Exhibit ‘JDF-1’ to the affidavit of Jessica Margaret Dawson-Field affirmed on 10 November 2020 (‘first Dawson-Field affidavit’); exhibit ‘JDF-8’ to the affidavit of Jessica Margaret Dawson-Field affirmed on 13 November 2020 (‘second Dawson-Field affidavit’).
By letter dated 22 July 2020, the defendant’s solicitor replied requesting an affidavit explaining the plaintiff’s delay and its reasons for failing to take any active steps since 8 January 2019.[5]
[5]Exhibit ‘JDF-2’ to the first Dawson-Field affidavit.
By letter dated 21 August 2020, the plaintiff’s solicitor replied declining to provide the requested affidavit and stating it intended to contact the Court seeking a hearing date.[6]
[6]Exhibit ‘JDF-3’ to the first Dawson-Field affidavit.
By letter dated 27 August 2020, the defendant’s solicitor responded proposing a set of orders to progress the proceeding. It proposed the plaintiff file an affidavit explaining the delay, the defendant to make any request for further and better particulars and discovery, and the plaintiff to provide the particulars and discovery.[7]
[7]Exhibit ‘JDF-4’ to the first Dawson-Field affidavit.
By letter dated 2 September 2020, the plaintiff’s solicitor responded advising they did not consent to the proposed orders and invited the defendant to make an application concerning delay, or alternatively, the plaintiff indicated its availability to attend a case management hearing.[8]
[8]Exhibit ‘JDF-5’ to the first Dawson-Field affidavit.
By letter dated 15 September 2020, the defendant’s solicitor replied suggesting the matter be listed.[9]
[9]Exhibit ‘JDF-6’ to the first Dawson-Field affidavit.
On 16 September 2020, the plaintiff’s solicitor emailed the Court indicating that parties were in discussion and unable to reach a consent position on the next steps in the proceeding. The parties agreed for a directions hearing to be listed.
On 18 September 2020, the Court made orders listing the proceeding for a directions hearing on 12 November 2020.
By letter dated 6 November 2020, the defendant’s solicitor wrote to the plaintiff’s solicitor requesting discovery and further and better particulars (‘6 November 2020 letter’).[10]
[10]Exhibit ‘JDF-7’ to the first Dawson-Field affidavit.
On 10 November 2020, the defendant filed and served its summons supported by an affidavit of its solicitor, Jessica Margaret Dawson-Field, affirmed on 10 November 2020 (‘first Dawson-Field affidavit’). It was made returnable on 8 December 2020.
By letter dated 10 November 2020, the plaintiff’s solicitor responded to the 6 November 2020 letter.[11] The letter stated the defendant misunderstood the plaintiff’s case. The plaintiff’s noted the defendant’s solicitors were relying on previous iterations of the writ instead of the current second further amended statement of claim dated 12 July 2018 (‘2FASOC’). The letter stated the plaintiff ‘does not allege the tort of interference with contractual relations’. The plaintiff was prepared to particularise the claim addressing the topics raised by the defendant in its request for further and better particulars. The plaintiff suggested it consolidate these into a third amended statement of claim to be filed and served by 18 December 2020 and a defence be filed and served in February 2021.
[11]Exhibit ‘JDF-9’ to the second Dawson-Field affidavit.
By letter dated 11 November 2020, the defendant’s solicitor replied setting out the reason for the summons and the further and better particulars they sought.[12]
[12]Exhibit ‘JDF-10’ to the second Dawson-Field affidavit.
On 11 November 2020, the Court made orders by consent vacating the directions hearing listed on 12 November 2020 and for material and submissions to be filed and served.
On 13 November 2020, the defendant filed submissions and a second affidavit of its solicitor, Ms Dawson-Field, affirmed that day.
On 23 November 2020, the plaintiff filed submissions in reply and an affidavit of its solicitor, Christopher Paul Gardner, sworn that day (‘Gardner affidavit’).
On 27 November 2020, the defendant filed submissions in response and a further affidavit of its solicitor, Ms Dawson-Field, affirmed that day (‘third Dawson-Field affidavit’).
Defendant’s submissions on costs
The defendant relies on ss 9, 25, 28–29 of the Civil Procedure Act 2010 (‘CPA’), s 24 of the Supreme Court Act 1986 and r 63.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) and the authorities Yara Australia Pty Ltd v Oswal (‘Yara v Oswal’)[13] and Gippsreal Ltd v Kenny.[14]
[13](2013) 41 VR 302, 306 [7], [9], 308–9 [17], 309–11 [20]–[26], 316–7 [52] (‘Yara v Oswal’).
[14](2016) 52 VR 149, 153–4 [5], 156–7 [22], 158 [25], 168 [57], 168–9 [60], 175 [91], 176 [96] (‘Gippsreal Ltd v Kenny’).
The plaintiff has breached the overarching obligation to minimise delay: s 25 of the CPA. It took no substantive step in this proceeding for about 16 – 18 months. It took no activity to engage the defendant during this time. The delay is egregious in light of the:
(a) asserted value of the claim being $80 million;
(b) plaintiff opposing a short stay that the defendant sought in April 2018; and
(c) plaintiff’s first communication after the hiatus unrealistically proposing the matter be listed for trial.
None of the plaintiff’s affidavits justify its period of inactivity in this proceeding. In reply to the plaintiff:
(a) it is common ground there are other proceedings on foot between the parties in other jurisdictions: table summarising litigation contained in exhibit ‘CPG-1’ to the Gardner affidavit. There is no fulsome explanation of how they distracted the plaintiff from this proceeding. Moreover, it is inconsistent for the plaintiff to say, on one hand, that other litigation distracted it from this proceeding and caused the delay, and on the other hand, that management issues (discussed next) caused the delay;
(b) the plaintiff says a reason for the delay is the departure of management employees. This is odd considering that it does not accept the defendant is prejudiced by the departure of some of its employees;
(c) the plaintiff says COVID-19 challenges resulted in delay. This is a universal experience in Victoria and does not explain the delay. Nor does it explain the delay for the whole period. That is, it can only relate to the period from March 2020;
(d) the suggestion that the plaintiff was waiting for its loss to crystallise is contrary to the obligation in s 29 of the CPA to minimise delay. In reply to the plaintiff’s submissions, the defendant asks ‘was the plaintiff busy or waiting for the alleged loss to crystallise?’; and
(e) the suggestion the Court closed the file. It does not explain why the plaintiff sat on its hands, especially if it considers it has a $80 million loss.
There is no answer to the central question: what is the reason for the unreasonable delay? The plaintiff did not make an application by summons alleging the defendant caused delay. The defendant takes umbrage at the suggestion its strategy is to cause delay.
The defendant has been prejudiced by the plaintiff’s delay. There has been an effluxion of time which the plaintiff has previously said is a problem when it opposed the defendant’s stay application. The passage of time has affected the availability of persons to provide instructions and potential evidence to the defendant. Three officers of the then Maritime Union of Australia (‘MUA’) were unsuccessful in recontesting their positions in 2019.[15] The three officials have not held any other position with MUA since that date. The defendant’s solicitor has attempted to contact them. One phone number was no longer in service. One voicemail remains unreturned. The official who returned the call advised he returned to work as a stevedore and he believed the others work as a seafarer and stevedore. Whilst it is not disputed that some of these witnesses can be contacted, they are now more difficult to access because they are no longer employees of the defendant.
[15]First Dawson-Field affidavit [26]–[29].
The defendant takes issue with the plaintiff’s suggestion the defendant caused the adjournment of the directions hearing. The third Dawson-Field affidavit spells out that it would have been a wasted appearance to have a directions hearing that could not resolve the summons.
If there is a long delay of inactivity, then a solicitor and counsel are required to engage in a ‘refresher’ of the proceeding to reacquaint themselves with the material, that is, to re-read the pleadings and correspondence, whether it is the same or new counsel. Even if the defendant engaged the same counsel, those counsel would be required to do a ‘refresher’ as time has passed. If the matter had continued in January 2019 without the period of inactivity, then new counsel may not have been needed. These are not huge costs. They are estimated at $40,000.
Plaintiff’s submissions on costs
If there has been delay by the plaintiff that was unreasonable, then costs should be ordered. That is not the case here. The defendant is not entitled to costs.
Firstly, there was no unreasonable delay by the plaintiff. The defendant tried and was successful in delaying the proceeding. Ten other proceedings were going on at the same time. There is no suggestion that issues between the parties disappeared. The plaintiff had a small management team during COVID-19 restrictions. Although not significant, they are relevant when talking about unreasonable delay.
The period in question, that is, between March 2019 and June 2020, assisted in the progression of the proceeding:
(a) the contempt proceedings concluded. There were negotiations between February 2019 and February 2020, and further correspondence between the parties between May and July 2020. The final payment of the costs was confirmed as having been paid on 1 July 2020;[16]
(b) the defendant reviewed extensive CCTV footage, spoke to witnesses and experts and reviewed subpoenas;[17] and
(c) the loss suffered by the plaintiff crystallised. This realisation enables an accurate assessment of loss.[18] It ensures that the Court resources are not wasted on a fruitless claim that is disproportionate to the amount claimed. The continuation of the proceeding, which is likely to be complex and costly, is proportionate to the issues and amounts in dispute.
[16]Gardner affidavit [61].
[17]Ibid [96].
[18]Ibid [54].
Secondly, if anyone is unreasonably delaying the proceeding it is the defendant. The defendant’s strategy has been to cause delay. The alleged picketing, which is the subject of the plaintiff’s claim, occurred over three weeks in an attempt to shut down the terminal. It was achieved to an extent. Then, during 2018, there was some delay because pleadings were necessary as the proceeding was commenced by generally indorsed writ. In March, a union merger occurred. On 6 April, the defendant made a stay application which had the effect of avoiding a defence being filed. It was unsuccessful but nevertheless the defendant obtained a stay by bringing the pleading summons causing a delay. Re-pleading then occurred on 12 July in the form of the 2FASOC.
Thirdly, there is no identifiable prejudice to the defendant. The jurisdiction being invoked is not a punitive one, it is compensatory. The defendant sought orders attached to the 2 July 2020 letter. The plaintiff responded with a suggested time frame for trial. The defendant has no example of prejudice other than three officials ceasing to hold office in June 2019. Their defence is ‘do not admit’. They no longer press the plaintiff for an affidavit explaining the delay.
The first Dawson-Field affidavit does not explain why new counsel were briefed. The link between the delay and need to brief new counsel is not provided. The passage of time does not disqualify counsel from acting. The plaintiff proffers alternative explanations as to why new counsel were briefed: the defendant’s former junior counsel fell out with the defendant in early 2019 and the defendant’s former senior and junior counsel appeared for the defendant’s former national secretary who has fallen out with the defendant. The lack of any admissible explanation from the defendant opens the door for the Court to draw an inference that the defendant did not brief new counsel because of delay.
The claim for wasted solicitor costs is flawed as the claim for a ‘refresher’ seems to have been driven by a need to prepare a brief to new counsel. Any genuine need for instructing solicitors to refresh would be minimal given the ongoing correspondence about the matter, the multiple proceedings and the early stage of the proceeding.
Applicable principles
Sections 9, 25, 28–9 of the CPA are applicable and follow.
9 Court’s powers to further the overarching purpose
(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects—
(a)the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c)the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i)the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i)the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
(2)For the purposes of subsection (1), the court may have regard to the following matters—
(a)the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;
(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;
(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;
(g)the public importance of the issues in dispute and the desirability of a judicial determination of those issues;
(h)the extent to which the parties have had the benefit of legal advice and representation.
(3) This section does not—
(a)limit any other power of a court to make orders or give directions; or
(b)preclude the court from considering any other matters when making any order or giving any direction.
25 Overarching obligation to minimise delay
For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to—
(a)act promptly; and
(b)minimise delay.
28 Court may take contravention of overarching obligations into account
(1)In exercising any power in relation to a civil proceeding, a court may take into account any contravention of the overarching obligations.
(2)Without limiting subsection (1), in exercising its discretion as to costs, a court may take into account any contravention of the overarching obligations.
29 Court may make certain orders
(1)If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice including, but not limited to—
(a)an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;
(b)an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately;
(c)an order that the person compensate any person for any financial loss or other loss which was materially contributed to by the contravention of the overarching obligation, including—
(i)an order for penalty interest in accordance with the penalty interest rate in respect of any delay in the payment of an amount claimed in the civil proceeding; or
(ii)an order for no interest or reduced interest;
(d)an order that the person take any steps specified in the order which are reasonably necessary to remedy any contravention of the overarching obligations by the person;
(e)an order that the person not be permitted to take specified steps in the civil proceeding;
(f)any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.
(2) An order under this section may be made—
(a) on the application of—
(i)any party to the civil proceeding; or
(ii)any other person who, in the opinion of the court, has a sufficient interest in the proceeding; or
(b)on the court's own motion.
(3)This section does not limit any other power of a court to make any order, including any order as to costs.
Section 24(1) of the Supreme Court Act follows.
Costs to be in the discretion of the Court
(1)Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
Rule 63.02 of the Rules follows.
General powers of Court
The power and discretion of the Court as to costs under section 24 of the Act shall be exercised subject to and in accordance with this Order.
In Yara v Oswal, the Court of Appeal held:
The Act prescribes that parties to a civil proceeding are under a strict, positive duty to ensure that they comply with each of the overarching obligations and the court is obliged to enforce these duties. The statutory sanctions provide a valuable tool for improving case management, reducing waste and delay and enhancing the accessibility and proportionality of civil litigation. Judicial officers must actively hold the parties to account.
Yet as we have observed, sanctions imposed for a breach of any overarching provisions have been a rarity at first instance. When no party invites the court to determine whether there has been a breach of the Act, there may be a judicial disinclination to embark upon such an own-motion inquiry for fear that inquiry as to a potential breach may be time consuming and may require the introduction of material that was not before the court as part of the proceeding. Such fears cannot relieve judges of their responsibilities. But we would not wish it to be thought that a judicial officer at first instance must undertake a substantial inquiry when considering whether there has been a contravention of the Act. As the sanction for a breach will usually lie in an appropriate costs order, a judge may at the conclusion of the reasons for judgment immediately invite oral submissions as to why there should not be a finding that the Act was contravened. The judge may in a relatively brief way deal with that issue in providing succinct reasons for a finding that there has been a breach of the Act and how that finding affects the orders for costs that are to be pronounced.[19]
[19]Yara v Oswal 311–2 [26]–[27].
In Gippsreal Ltd v Kenny, the Court of Appeal held:
The first issue required the judge to consider at least the following:
– the length of the delay;
– any explanation that was provided for the delay;
–whether any steps were taken during the period of the delay to progress the matter; and
– whether any such steps were timely and reasonable.
The second issue required the judge to consider at least the matters set out at [99] below, which include:
– any prejudice to the respondents by reason of the delay;
– the merits of the applicant’s claim; and
–whether the interests of justice would be best served by making the order sought by the respondents, some other order or no order at all.
As the making of an order under s 29 of the CPA is discretionary, the circumstances of a particular case may give rise to particular issues that need to be considered in the proper exercise of the discretion. The weight to be given to any particular matter, including the merits of a party’s claim which is sought to be impugned on the basis of delay, may vary from case to case. What is abundantly clear, however, is that an application under s 29 cannot be resolved by treating it as an application under s 63 and having regard only to the ‘no real prospect of success’ test in that section.[20]
[20]Gippsreal Ltd v Kenny –9 [58]–[60].
Analysis
The plaintiff’s delay in prosecuting this proceeding is in contravention of the overarching obligations and in particular, the obligation in s 25 of the CPA to act in a timely manner and minimise delay. Pursuant to s 29(1), I will make orders requiring the plaintiff pay particular costs of the defendant that are wasted costs occasioned by the delay. It is in the interests of justice to make that order for the following reasons.
Firstly, the delay of almost one and a half years is inordinate.
Secondly, there is no proper explanation for the inordinate delay.
The plaintiff’s explanation that the delay was due to management changes and a focus by a manager on mitigating loss is unsatisfactory in light of the plaintiff’s evidence (uncontested by the defendant) that there were various other proceedings going on between the parties and the plaintiff was busy with those. The Gardner affidavit deposes that approximately three hours a week was taken by a manager, Mr O’Leary, in dealing with various other proceedings. How did the plaintiff manage those proceedings yet not this one? There are no details in the Gardner affidavit explaining this.
The plaintiff referred to the COVID-19 restrictions as a factor affecting its delay. However, the restrictions only came into effect in March 2020 and the vast majority of the delay was before then.
I accept the evidence in the Gardner affidavit that during the period of delay the parties were negotiating about the costs of the contempt judgment and the final payment of those costs was only confirmed on 1 July 2020. However, this does not explain why the proceeding could not be prosecuted concurrently. Both parties are legally represented.
The Gardner affidavit deposes:
Prosecution of this matter
In addition to the investigation and quantification of the loss, VICT has taken steps to progress this matter. Without intending to waive privilege, VICT has:
a. Reviewed material produced in accordance with subpoenas;
b. Prepared witness proofs;
c. Identified and spoken to potential expert witnesses;
d. Compiled documents; and
e. Reviewed extensive CCTV footage;
f. Weighed up the costs and benefits of proceeding.[21]
[21]Gardner affidavit [96].
The date of when the above activities occurred and the amount of time they required is not identified. There is no proper explanation of why they took almost one and a half years to complete. I am not satisfied they were conducted in a timely manner.
I think, however, the last point from the Gardner affidavit is telling (cited above). So too are the following paragraphs in the Gardner affidavit.
The passage of time since the Picket has caused some of VICT’s lost commercial opportunity losses to crystallise. I am informed by Mr O’Leary that had VICT instead successfully secured the available shipping services over the last two years, then it would have been unlikely to have continued the litigation. It would not have been worthwhile pursuing.
I am informed by Mr O’Leary that the crystallisation of the loss has provided VICT with an incentive to continue the litigation and be compensated for the wrongdoing it has suffered by the actions of the CFMMEU. VICT does not pursue this litigation lightly. It has carefully weighed up the benefits of the litigation against the ‘cost’ of the litigation both in a financial and non-financial sense. The significant financial loss it now knows it has suffered has informed this decision.[22]
[22]Ibid [55]–[56].
Evidently, the plaintiff was weighing up whether or not to proceed with this proceeding. It did not do so in a timely manner and it is not an adequate reason for delay. This leads to the next point.
The plaintiff’s delay was inconsistent with their opposition to the defendant’s unsuccessful application for a stay earlier in the proceeding.[23]
The stay would cause VICT substantial prejudice. It will cause a delay of many months and perhaps years. Delay is the natural enemy of justice. It is a truism that justice delayed is justice denied. Because of this, the Courts mould their procedures as to avoid unnecessary delays in the disposition of cases.[24]
In support of this unusual application the CFMMEU cites the correspondence referred to in paragraphs [17]-[19] of Mr Pasfield's affidavit. That correspondence pre-dates the pleading the subject of the proposed pleading summons. Each of the CFMMEU's previous concerns was addressed by the filing of the Amended Statement of Claim on 16 March 2017. No substantive concerns have been raised in the weeks since that pleading was filed, and no pleading summons has been filed.[25]
[23]VICT v CFMMEU [2018] VSC 181 (McDonald J) [24]–[25].
[24]Jago v District Court of New South Wales (1989) 168 CLR 23, 45 (Brennan]). See also Allen v Sir AlfredMcAlpine and Sons Ltd [1968] 2 QB 229,245 (Lord Denning MR).
[25]Plaintiff’s submissions filed on 9 April 2018 [24]–[25].
For completeness, I make no finding about the merits of the plaintiff’s claim. That is a matter for trial.
Prejudice
I accept that there is general prejudice to the defendant given the effluxion of time due to the inordinate delay. There is a dispute between the parties as to whether there is specific prejudice occasioned to the defendant by the delay. I accept the evidence in the Dawson-Field affidavits that three former officials of the defendant are potential witnesses and are no longer employees of the defendant. I accept it may be more difficult to obtain instructions. However, that does not necessarily mean that they are unavailable to give evidence. On the material before me, I do not find there is specific prejudice occasioned by the delay. The issue of specific prejudice may be an issue for trial.
I do not accept that the defendant is responsible for the delay. In respect of the date for the summons, the plaintiff’s solicitor posed a number of potential dates and the defendant’s solicitors selected one of those dates.[26] Moreover, given the unreasonable delay by the plaintiff in agitating this proceeding, it was reasonable for the defendant to cause a summons to be issued to seek its wasted costs. As to the submissions that the defendant caused delay in the period before the 2FASOC, they do not answer the question of the delay here. It concerns a period subsequent to the filing of the 2FASOC. Here, the plaintiff has made a substantial claim and it is incumbent upon it to prosecute it. The delay of more than a year was not caused by the defendant failing to respond in a timely manner.
[26]Exhibits ‘JDF-5’–‘JDF-6’ to the first Dawson-Field affidavit.
Finally, the plaintiff made allegations of the defendant’s unlawful conduct and particularly to events leading to the contempt judgment given on 19 December 2018. This all occurred prior to the period of delay in issue here. It does not explain or excuse the plaintiff’s inordinate delay.
The plaintiff refers to not being contacted by the Court during the period of delay. Even assuming that is the case, it does not provide an explanation for the plaintiff’s delay or absolve the plaintiff of its responsibility to comply with the CPA overarching obligations.
Wasted Costs
As to the wasted costs, they are the costs of solicitors and counsel needing to refresh themselves in relation to the file. When a file has been dormant for a long time, in this case more than one year, legal practitioners need to read documents again to familiarise themselves with the file. This is necessary both to advise their clients and comply with their duties as officers of the Court. The practitioners were not absolved of the responsibility of familiarising themselves by reason of other legal proceedings between the parties.
Although the defendant’s solicitors had previously worked on the file, I accept that they were required to familiarise themselves with the file again after such a long absence in the proceeding being agitated. The first Dawson-Field affidavit deposes that the file needed to be reviewed in order for solicitors to re-familiarise themselves with material not accessed or referred to for more than 12 months.
The first Dawson-Field affidavit deposes:
The wasted costs incurred by my client related to the preparation of the electronic brief, engaging new counsel, reviewing material following a long hiatus and responding to the Plaintiff’s correspondence concerning the revival and re-listing of the proceedings are presently just over $40,000.[27]
[27]First Dawson-Field affidavit [35].
Drilling down, the defendant’s wasted costs will be the costs of its solicitors:
(a) reading and considering the plaintiff’s 2 July 2020 letter;
(b) reviewing the file upon receiving the 2 July 2020 letter;
(c) seeking instructions and drafting the letter sent on behalf of the defendant on 22 July 2020 regarding the delay; and
(d) reading and considering the plaintiff’s response correspondence on 21 August 2020.
Thereafter, the defendant’s costs are more appropriately costs of, incidental to and occasioned by its summons.
As to the defendant’s costs of briefing new counsel, the first Dawson-Field affidavit deposes that the engagement of new counsel was ‘in part due to the passage of time and delay’.[28] Given it is accepted that this was only partly due to delay, those costs ought not be included in the costs order consequential to this ruling.
[28]Ibid [30].
As to the defendant’s counsel costs, regardless of whether they were previous counsel or new counsel, it was necessary for them also to familiarise themselves with the file. Here, there were new counsel. That is unsurprising after such a long delay.
I accept there are wasted costs by counsel having to familiarise themselves with the brief and those costs would have been incurred even if previous counsel continued to be retained. However, the practical issue is disentangling these costs from the costs of the summons given that new counsel are briefed. Making those orders now will lead to unnecessary disputation in the Costs Court. Justice lies in counsel’s costs being considered as costs of, incidental to and occasioned by the defendant’s summons.
Conclusion
I propose to make the following orders.
1. The plaintiff pay the defendant the costs of the defendant’s solicitor:
(a) reading and considering the plaintiff’s 2 July 2020 letter;
(b) reviewing the file upon receiving the 2 July 2020 letter;
(c)seeking instructions and drafting the letter sent on behalf of the defendant on 22 July 2020 regarding the delay; and
(d)reading and considering the plaintiff’s response correspondence dated 21 August 2020.
I will give the parties an opportunity to make submissions on the proposed orders and on the costs of the defendant’s summons.
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