Whitehead v Pratt Road Pty Ltd

[2022] VCC 1438

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No. CI-22-00510

PHILIP WHITEHEAD	Plaintiff
v
PRATT ROAD PTY LTD	First defendant
REGISTRAR OF TITLES	Second defendant

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JUDICIAL OFFICER:	JUDICIAL REGISTRAR MULLER
WHERE HELD:	Melbourne
DATE OF HEARING:	On the paper
DATE OF RULING:	5 September 2022
CASE MAY BE CITED AS:	WHITEHEAD V PRATT ROAD PTY LTD & ANOR
MEDIUM NEUTRAL CITATION:	[2022] VCC 1438

RULING

Subject:COSTS

Catchwords:   Costs, Indemnity Costs, Civil Procedure Act, Overarching Purpose,

Legislation Cited: Civil Procedure Act 2010 (Vic) ss 7(1), 16-26 and 65C(1).

APPEARANCES: None, determined on the papers after receipt of written submissions.

THE JUDICIAL REGISTRAR

1This proceeding commenced in the Supreme Court of Victoria in late 2020.

2On 1 February 2022, a Judicial Registrar of the Supreme Court of Victoria ordered that the proceeding be transferred to the County Court of Victoria.

3On 9 May 2022, orders were made in this Court by consent.  Those orders included that the proceeding be set down for trial commencing on 14 March 2023, and that by 7 June 2022, at 4.00pm, the plaintiff was to file and serve any second further amended statement of claim.

4The first defendant asserts that the plaintiff did not file or serve a further amended statement of claim by 7 June 2022 and that caused the first defendant to send emails to the plaintiff on 10, 15 and 27 June 2022 and then to issue a request for interlocutory determination on 30 June 2022.

5By email dated 1 July 2022, the first defendant provided the Court with its proposed orders to amend the timetabling orders made on 9 May 2022.  The proposed orders include an order that the plaintiff pay the first defendant’s costs of this application on an indemnity basis.[1]

[1] The second defendant’s (the Registrar of Titles) costs were reserved pursuant to my order dated 18 July 2022.

6By email dated 6 July 2022, the plaintiff informed the Court that on or shortly before that date, it had served a further amended statement of claim  on the first defendant.  The plaintiff also said that he agreed to the orders proposed by the first defendant save for the costs order and submitted that costs should be ordered on a standard rather than an indemnity basis.  

7On that basis, on 18 July 2022, I made orders as sought by the defendant other than in respect of costs, for which I gave time for the parties to put on short submissions on the point. Both parties took up that opportunity.  In addition, the plaintiff relies on an affidavit sworn by him on 29 July 2022.

8That affidavit sets out the considerable personal difficulties the plaintiff (and his domestic partner) has faced and will continue to face.  He says that as a result, he has difficulty managing this litigation and that he became overwhelmed and found it difficult to concentrate. 

9I accept that litigation in this Court is often conducted by individuals with little, if any, legal training, or experience with the civil Court system.  I also accept that litigation in this Court is often overwhelming and that, at times, this can be causative of people not responding as quickly or as properly as they should.

10I also accept what the plaintiff says in his affidavit about how those difficulties have affected him.  However, neither the affidavit nor the plaintiff’s submissions address or give any reason for the failure by the plaintiff’s lawyers to send an explanatory email to the first defendant’s lawyers prior to 7 June 2022 informing the first defendant that the plaintiff would be late in filing and serving his second further amended statement of claim.  Neither the affidavit nor the submissions explain why the plaintiff’s lawyers did not respond to the first defendant’s emails to the plaintiff dated 10, 15, or 27 June 2022 or after the first defendant issued its request for an interlocutory determination on 30 June 2022.

11The parties accept that the Civil Procedure Act 2010 applies to this proceeding. Section 65C(1) of the Act gives, in addition to any other power the Court may have in relation to costs, the Court the power to make any order as to cost it considers appropriate to further the ‘overarching purpose’.

12Section 7(1) of the Act defines the overarching purpose as: to facilitate the just, efficient, timely, and cost-effective resolution of the real issues in dispute.

13In furtherance of the overarching purpose, a Court may have regard to the degree of which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding. Those obligations are contained in sections 16 to 26 of the Act.  They include, amongst other things, an obligation to cooperate in the conduct of the proceeding (section 20) as well as an obligation to act promptly and minimise delay (section 25).

14In my view, the failure by the plaintiff (or perhaps more accurately, the plaintiff’s lawyers) to inform the first defendant that the plaintiff was experiencing difficulties and thus delay, and then the failure to respond to the first defendant’s lawyers in respect of the communications identified above, amounts, not only to a  professional discourtesy (which by itself is disappointing and disrespectful but not a breach of the Act), but also to conduct that falls short of what is required by a party (and/or his lawyers) pursuant to the Civil Procedure Act 2010, particularly in respect of sections 20 and 25 of the Act.

15The plaintiff’s lawyers should have written to the first defendant, setting out in short form the difficulties the plaintiff was facing and proposing amendments to the timetable.  Instead, they did nothing, leaving the first defendant in the dark as to what the plaintiff was intending to do in respect of amending his pleading.

16Likely, simple correspondence from the plaintiff’s lawyers would have obviated the need for the defendant to have sent three items of correspondence and then to issue a request for interlocutory determination.

17In my view, this conduct, or the failure to act, warrants a departure from the usual order as to costs.  Therefore, I order the plaintiff pay the first defendant’s costs of and incidental to the request for interlocutory determination  on an indemnity basis.

18I am not privy to the communications between the plaintiff and his lawyers.  It is possible that he instructed them not to say anything to the first defendant. Accordingly, I do not make a finding specifically against the plaintiff’s lawyers and I leave the question of which of the plaintiff and his lawyers should ultimately bear the burden of the costs I have ordered.