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NSW Crest

Supreme Court
New South Wales

Medium Neutral Citation:
HARRIS v VILLACARE PTY LIMITED [2012] NSWSC 452
Hearing dates:
14, 22 July, 29 September 2011
Decision date:
08 May 2012
Jurisdiction:
Common Law
Before:
RS Hulme J
Decision:

(i) Pursuant to s 99(2)(a)(ii) of the Civil Procedure Act 2005, disallow as between Stewart William Cameron of Hickson's Lawyers on the one hand and Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited on the other 80% of the costs of counsel in considering, settling or otherwise dealing with the affidavit (in draft or final form) of Doyle Morgan John Myles of 24 May 2011;

(ii) Order, pursuant to s 99(5) of that act that the said Stewart William Cameron pay to Villacare Pty Limited the sum of $1,003.20 on account of the costs of counsel in considering, settling or otherwise dealing with the affidavit (in draft or final form) of Doyle Morgan John Myles of 24 May 2011;

(iii) Order, pursuant to s 99(2)(b)(ii) of the Civil Procedure Act 2005 that Doyle Morgan John Myles and Stewart William Cameron of Hickson's Lawyers pay to Villacare Pty Limited the sum of $1,964.16;

(iv) Order that the said Stewart William Cameron provide to each of Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited a copy of these orders and reasons;

(v) Grant liberty to apply by Notice of Motion returnable before me at 9.30 am on Thursday 17 May 2012, and served on Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited on or before Monday 14 May 2012, in respect of quantification the subject of Mr Bartos' report, and any consequent adjustment of the amounts referred to in orders (ii) and (iii) hereof.

Catchwords:
Legal practitioner - costs - incurred without reasonable cause - affidavit unduly long -practitioner ordered to pay
Legislation Cited:
Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Workers Compensation Regulation 2010
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:
DJZ Constructions Pty Ltd v Paul Pritchard [2010] NSWSC 1472
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Category:
Costs
Parties:
RICHARD HARRIS v VILLACARE PTY LIMITED
Representation:
P: J de Greenlaw
D: D J Price
Hicksons Lawyers: R Burbidge QC/D J Price
P: Gerard Malouf & Partners
D: Hicksons Lawyers
File Number(s):
2010/407668

Judgment

1RS HULME J: These reasons arise out of disquiet I experienced during the hearing of an application for preliminary discovery on the issue of whether or not there had been such an incurring of costs that the solicitors for the Respondent to the application should be made to bear them, or some of them personally. I identified two matters as inspiring my disquiet, firstly, the volume of material, in particular, an affidavit by a Mr Myles, a solicitor in the employ of the Defendant's solicitors, Hicksons Lawyers, and secondly, the fact that, there being evidence in an affidavit from a Mr Chandra suggesting that the Plaintiff's injury was due to the fault of someone other than himself, the Defendant had not co-operated in providing the relevant material without the need to come to court.

2On 4 December 2006, the Plaintiff was injured when a semi-trailer he was driving overturned. He would seem to have been seriously injured. He took Workers Compensation proceedings on 8 June 2010 against "Bunker Freight Lines" which was said to be his employer.

3On 8 December 2010, there was filed on his behalf in this Court a Summons seeking by way of preliminary discovery that "pursuant to Part 5 Rules 5.2 and/or 5.3 of the UCPR Rules 2005 the Defendant to give discovery of documents as referred to in the Affidavit of Zubin Hiramanek sworn 6 December 2010". Named as Defendant in the summons was "Villacare Pty Limited (Bunker Freight Lines)".

4In his affidavit, Mr Hiramanek had said that he was a solicitor in the employ of the Plaintiff's Solicitors, provided some sketchy information as to the circumstances of the accident on 4 December 2006, referred to the Plaintiff having been in a coma for 27 days after the accident and having suffered, inter alia, brain damage and loss of memory including any memory of the accident. Mr Hiramanek also said that at the time of his accident:-

The Plaintiff was driving a semi-trailer, in the course of his employment as a truck driver with Bunker Freight Lines Pty Limited, now known as Villacare Pty Limited, the Defendant.

5Mr Hiramanek also said that on his instructions, the truck (by which I infer he means a prime mover) driven by the Plaintiff was loaded with a trailer registration number ST 02 ED at the Defendant's depot and he wished preliminary discovery of documents in an effort to ascertain:-

(i) The name of the party(s) that loaded the trailer immediately prior to the date of the accident.

(ii) What was loaded onto the trailer.

(iii) How the load was loaded and/or secured.

(iv) Where individual items of the load were loaded.

(v) The name of the Compulsory Third Party insurer of the trailer.

(vi) The circumstances of how the accident occurred.

6Mr Hiramanek said that the Plaintiff did not know where and by whom the trailer itself was loaded. He said that the Plaintiff had been in receipt of Workers Compensation benefits, "paid by the workers compensation insurer of his employer, the Defendant ever since the accident", that claims pursuant to the Motor Accidents Compensation Act 1999 and the Workers Compensation Legislation had been served on the Defendant and that he had sought to obtain from the Defendant much of the information referred to in the immediately preceding paragraph. Mr Hiramanek said that he had sought information from the workers compensation insurer of the Defendant without success and annexed correspondence he said that he had forwarded to the Defendant to which also he said that he had not received a reply. The correspondence was addressed to Bunker Freight Lines and Allianz Workers Compensation.

7Given the way in which proceedings progressed, it is convenient to reflect on the terms of Part 5 Rules 2 and 3 of the UCPR. In substance, so far as is relevant to the issues before me, an applicant who wishes to succeed under Rule 5.2 has to establish that:-

(i) Having made reasonable enquiries,

(ii) he is unable to sufficiently ascertain the identity of a person for the purpose of commencing proceedings against that person, and

(iii) the respondent to the application may have information or a document that tends to assist in establishing that identity.

8In substance, so far as is relevant to the issues before me, an applicant who wishes to succeed under Rule 5.3 must establish:-

(i) He may be entitled to make a claim against the respondent to the application, but

(ii) having made reasonable enquiries,

(iii) he is unable to obtain sufficient information to decide whether to commence those proceedings, and

(iv) the respondent may have a document which would assist the applicant to make a decision.

9Considered in the light of my summaries of the rules, it is apparent that the claim referred to in paragraph 5(i) above fell within Rule 5.2, the claim referred to in paragraph 5(vi) fell within Rule 5.3, the claim referred to in paragraph 5(v) fell outside both rules and the claims referred to paragraphs 5(ii) to (iv), if relevant at all, also fell within Rule 5.3. None of the claims were directed to ascertaining the identity of the Plaintiff's employer, or Villacare or Bunker Freight Lines or Bunker Freight Lines Pty Limited.

10On 24 January 2011, an Appearance was filed on behalf of the Defendant. In that part of the document as set out the "Title of Proceedings" the Defendant was referred to as "Villacare Pty Limited (incorrectly sued as Villacare Pty Limited (Bunker Freight Lines))".

11After a number of intermediate events to which it will be necessary to refer, the application for preliminary discovery came before me on 14 July last for determination. After it had proceeded for some time, I was informed that the parties had reached agreement, short minutes were handed up and I made orders in accordance with them. The orders included that the Defendant was to provide discovery in specified respects and was to pay the Plaintiff's costs of the Summons as agreed or assessed. It was after making those orders that I expressed the disquiet referred to in [1] above and raised the possibility that the Defendant's solicitors should be ordered to pay the costs personally.

12Counsel then appearing for Villacare Pty Limited sought to persuade me that there was no need for me to pursue the matter of costs. He was unsuccessful and proceedings were stood over to 22 July to give the solicitors time to consider the matters I had raised. On that day, there was no appearance for the Defendant but Mr R Burbidge QC appeared for Hicksons Lawyers. He said he was not in a position to adduce evidence then but he sought to persuade me that it was not necessary that the matter proceed to a full hearing. He also was unsuccessful and the matter was further adjourned to 29 September.

13Shortly before 29 September, I was provided with an affidavit of Mr Stewart Cameron, a partner of Hicksons - the affidavit was ultimately filed on 29 September - detailed written submissions of Mr Burbidge, and copies of a number of documents, being:-

(i) Extracts from Workplace Injury Management and Workers Compensation Act 1987 and the Workers Compensation Regulations 2010 relating to legal costs.

(ii) Letter from Hicksons to (the Plaintiff's solicitors) dated 13 January 2011.

(iii) Transcript of 14 July 2011.

(iv) Transcript of 22 July 2011.

(v) Consent short minutes of order of 24 January 2011.

(vi) Consent short minutes of order of 24 February 2011.

(vii) Plaintiff's submissions of 14 April 2011.

(viii) Plaintiff's submissions of 26 June 2011.

(ix) Defendant's submissions of 5 July 2011.

(x) Plaintiff's submissions of 14 July 2011.

(xi) Handwritten consent orders of 14 July 2011.

14It is apparent that, apart from the first, these are copies of documents that have come into existence in the course of the proceeding and could be expected to be found, as is the fact, on the Court file.

15In the penultimate paragraph of the written submissions, Mr Burbidge said that in light of what was contained in the affidavit and submissions and what had been said on 22 July, Hicksons did not seek to be heard further unless I believed that I would be assisted by further argument and enquiry in that regard would be made on 28 September. When it was, I informed Mr Burbidge that whether further submissions should be made was a matter for him or his clients but I did not require any. In fact no-one sought to argue the matter further on 29 September and I reserved my decision.

16It is necessary to return to the details of the proceedings. On 13 January 2001, Mr Cameron of Hicksons wrote to the Plaintiff's Solicitors referring to the summons and confirming that Hicksons were instructed by "Allianz Australia Workers Comp (NSW) Limited the workers compensation insurer for Villacare Pty Limited". In the letter Mr Cameron indicated that he had yet to receive instructions as to whether his client intended to oppose the orders sought but went on to, inter alia:

  • Give some gratuitous advice as to the implications of Rule 5.2 and 5.3.

  • Say that there appeared to be no correspondence addressed "to the applicant's employer, Villacare Pty Limited".

  • Observe that he understood Bunker Freight Lines to be a separate entity to Villacare Pty Limited.

  • Contrast the allegation that the Applicant did not know by whom the trailer was loaded with a statement in the workers compensation proceedings where the Applicant had referred to "TNT Freight".

  • Suggest that the Applicant might have substantial difficulty convincing the court that adequate enquiries had been made for the purposes of Rules 5.2 and 5.3. Specific mention was made of the fact that there was no evidence to show reasonable enquires had been made of TNT or of the traffic authorities in each state as to the relevant insurer of the vehicle.

  • Suggest that the proceedings, which were returnable on 25 January 2011, be adjourned.

17On 24 January 2011, there were signed on behalf of the parties consent orders that:

1. The Plaintiff to obtain and serve evidence of further due search and enquiry by 7 February 2011.

2. The matter is to be adjourned to further Return of Summons at 10.00 am on 15 February 2011.

18On 15 February, there was no appearance before the Registrar and the matter was stood over to 25 February. On 24 and 25 February, another consent order was signed by the Solicitors and filed on 25 February 2011. It provided:-

1. The Plaintiff to serve all materials previously served on Bunker Freight Lines and evidence of further due search and enquiry to Villacare Pty Limited c/o Hicksons Lawyers by 3 March 2011.

2. Matter to be stood over for further directions hearing on 24 March 2011.

19On 17 March 2011, Mr Hiramanek forwarded to Hicksons copies of the letters requesting information that he had previously sent to Bunker Freight Lines Pty Limited.

20On 24 March, the matter was set down for hearing on 21 April, prior to which the Plaintiff was ordered to file any further affidavits and written submissions and the Defendant to file any written submissions.

21Two further Affidavits by Mr Hiramanek dated 14 April 2011 were filed. In one of these Mr Hiramanek sought to explain how he came to be under a misapprehension as to the name of the Plaintiff's employer, and referred to steps in the Workers Compensation proceedings calculated to confirm his misapprehension. In that connection Mr Hiramanek annexed to his affidavit copies of a Reply which nominated Hicksons as the employer's representative and named the Respondent as "Villacare Pty Limited (Bunker Freight Lines)" and of a "Complying Agreement pursuant to s 66A of the Workers Compensation Act 1987" in which the employer was named as "Bunker Freight Lines". It is appropriate to note that while the first of these bears a stamp indicating that it had been received by the Workers Compensation Commission, the second does not and neither bears any signature or other indication of having been executed. Mr Hiramanek said that Hickson's letter of 13 January drew to his attention that Villacare was the Plaintiff's employer and a corporate entity separate from Bunker Freight Lines Pty Limited, and said that searches of the registration plate had revealed that "Bunker Freight Lines Pty" (sic) was the company that owned the truck. Both Affidavits of 14 April referred to the making of further efforts to obtain information and the service of some subpoenae to five nominated persons requiring the production of documents.

22In one of these 14 April affidavits Mr Hiramanek also said that the Plaintiff sought from Villacare:-

(a) Correspondence and/or contract or other documents between Villacare Pty Limited and Bunker Freight Lines Pty Limited regarding any arrangement for its employees to be drivers of Bunker Freight Lines Pty Limited's trucks.

(b) Any correspondence, instruction manual or other document detailing instructions to its employees such as Mr Richard Harris, as to driving its trucks or in relation to the route to drive between Dubbo and Sydney.

(c) Results of investigations into the subject accident by Villacare Pty Limited.

(d) Results of investigations into the subject accident conducted by Bunker Freight Lines Pty [sic] which were given to Villacare Pty Limited.

(e) Results of investigations by the Police/Rural Safety etc into the subject accident given to, or obtained by, Villacare Pty Limited.

(f) Copies of any incident reports and/or internal company documents arising from the subject accident or investigation into it.

(g) Documents relating to any insurance claims on the truck or damaged goods, made on Villacare Pty Limited, as a result of the accident.

23On or soon after 14 April, the Plaintiff had served written submissions. In the course of those submissions the Plaintiff's counsel said, inter alia:-

(a) That the Plaintiff was employed by the Defendant (paragraph 1), the correct identity of (his) employer had been identified (paragraph 24) but that person had chosen to oppose the Plaintiff's application.

(b) In paragraph 5, that the Plaintiff's advisors ascertained from the Defendant's solicitors that the Plaintiff drove trucks owned by an entity other than his employer and consequently no order was now sought pursuant to Part 5 Rule 5.2.

(c) In paragraph 8, that the Plaintiff seeks to establish the true identity of:-

(i) The relationship between his employer and the owner of the truck.

(ii) What training, instructions and/or safety measures were taken by the employer in relation to its truck driving employees such as the Plaintiff; and

(iii) The results of any investigation into his accident conducted or obtained by the employer.

(d) In paragraph 11, that it was accepted that the Part 5 Rule 5.3 procedure cannot be used to obtain information to determine whether proceedings can be instituted against a third party but the Defendant was in the best position to provide discovery and that what was discovered might lead to an application for similar discovery against another entity.

(e) In paragraphs 13 - 16, that the Workplace Injury Management and Workers Compensation Act imposed restrictions on litigation, making it necessary to obtain evidence before commencing proceedings.

(f) In paragraph 18, that the Plaintiff wished to ascertain the terms of any relationship between his employer and the truck owner, and subsequently who actually loaded the trailer and who loaded the trailer onto the truck as the Plaintiff's cause of action might lie under the Workers Compensation legislation, the Motor Accidents legislation and/or the Civil Liability Act.

(g) In paragraphs 22 and 25, there was a close association between Bunker Freight Lines Pty Limited and Villacare and, in consequence, the Plaintiff sought the Court's indulgence to be liberal in its interpretation of the material to be discovered by Villacare.

(h) In paragraph 24, that since the correct identity of the Plaintiff's employer has been identified, that party has chosen not to provide discovery.

24Reference was also made to the Court's power to dispense with the requirements of the Rules, to give directions and to the overriding purpose of the Act and Rules as referred to in ss 56, 57 and 58 of the Civil Procedure Act 2005.

25On 21 April, the matter came before the Registrar. Directions were made and that matter adjourned for hearing on 14 July 2011. On 21 April, the Plaintiff also served the affidavit of Mr Chandra which had been sworn on 25 November 2010. Mr Chandra was a truck driver who had attended the scene of the accident to organise salvage. He expressed the view that the trailer of the Plaintiff's vehicle was not properly loaded and was top heavy and that he believed this is what caused the accident to occur. He also provided some evidence of matters seen at the scene. His Affidavit suggests he thought that both he and the Plaintiff were employed by Bunker Freight Lines Pty Limited, that managers of Bunker Freight Lines attended the scene and one of these persons gave him directions as to what to do with the cargo on Mr Harris' truck.

26On 21 April, according to Mr Cameron, the Plaintiff's counsel also withdrew his written submissions in their entirety. According to Mr Cameron and the Associate's Record of Proceedings, the Plaintiff was ordered to file (new) submissions by 3 June.

27There followed the Affidavit of Mr Doyle Myles which was dated 24 May 2011. The body of the affidavit is four and a half pages long and there are attached 78 pages of annexures separated by 25 dividers. In the Affidavit, Mr Myles:-

(i) Referred to the letter of 13 January 2011 (a copy of which was annexed behind Tab 1) as advising of the Defendant's objections to the present Summons including that no requests for information had been forwarded to the Plaintiff's employer which was identified as Villacare or to TNT Freight.

(ii)Annexed behind Tab 2 a copy of a five page statement of the Plaintiff that appears to be dated 4 December 2009 in which he was said to have "identified TNT Freight as the body that had loaded the trailer".

(In that statement, the Plaintiff described his circumstances subsequent to the accident including the break up of his marriage in consequence, apparently significant and stressful Family Court proceedings, moving to Tasmania where his mother continues to care for him, continued treatment by the Tasmanian Acquired Brain Injury Services and difficulty with concentration and memory.)

(iii) Said that on 25 February 2011, the matter was stood over by consent and annexed behind Tab 3 a copy of the Consent orders made on that day.

(iv) Referred to and annexed behind Tab 4 a further letter from Hicksons dated 10 March 2011 repeating the orders made on 25 February, advising the Plaintiff's solicitors that there had been no compliance with one of these requiring the service of materials and requesting those materials urgently.

(v) Recorded the receipt of an email on 17 March 2011 from Mr Hiramanek, annexed behind Tab 5 a copy of the email, and quoted from the email the purpose of the Summons, viz, "to identify firstly who loaded the trailer, whether it was done safely, the cause of the accident, the current location of the trailer/truck and who was responsible".

(vi) Referred to and annexed behind Tab 6 a covering letter from Hicksons of 24 March 2011 forwarding, at the Plaintiff's solicitor's request, a further copy of the letter of 13 January 2011.

(vii) Referred to and annexed behind Tab 7 an email from Mr Hiramanek informing Hicksons of the issue of subpoenae to the Lithgow Local Court, the NSW Police Commissioner, the State Emergency Services, Allianz Workers Compensation, and Bunker Freight Lines Pty Limited.

(viii) Included behind Tab 8 a letter from Hicksons of 19 April 2011 wherein Hicksons "formally place(d) Mr Hiramanek on notice that they were seeking to set aside those subpoenae on the grounds that the issue of subpoenae as an incident of a Summons seeking preliminary discovery was an abuse of process and cannot be permitted". The letter repeated the name of the organisations to whom the 5 subpoenae had been directed and also confirmed that the application for preliminary discovery was still being opposed for the reasons outlined in the letter of 13 January.

(ix) Referred to paragraph 6 of one of the Affidavits of Mr Hiramanek sworn 14 April 2011 which was in terms:-

All my previous correspondence noted that the employer of Mr Harris was Bunker Freight Lines Pty Ltd. I have written to Allianz Workers Compensation (NSW) which is a Workers Compensation Insurer, wrongly naming Bunker Freight Lines as the employer, this error was not corrected. A copy of two (sic) letters sent to Allianz Workers Compensation (NSW) Pty Limited dated 25 July 2007, 1 November, 2009 and 10 June 2010 are annexed hereto and marked ...

(x) Thereafter observed that a review of the Hicksons file showed that much correspondence was forwarded either to the Plaintiff or the Plaintiff's solicitors in which Villacare Pty Limited not Bunker Freight Lines Pty Limited was named and commonly described as the employer.

(xi) Then referred to and annexed behind Tab 9 a copy of the Application to Resolve a Dispute that commenced the Plaintiff's Workers' Compensation proceedings and in which the Respondent and Employer was named as "Bunker Freight Lines" and, behind Tab 10, the Reply filed by Hicksons. In this reply, the Respondent was named as "Villacare Pty Limited (Bunker Freight Lines)".

(xii) Said that the annexures originally attached to those documents were omitted. However, what was included still amounted to eight pages in the case of the Application and five pages in the case of the Reply.

(xiii) Then went on to refer to, describe, and annex behind dividers numbered 11 - 25, 49 pages of the correspondence Allianz or Hicksons had sent. Two of these letters (Tab 11 and according to paragraph 16 of the affidavit, Tab 14) were to the Plaintiff's solicitors. Those behind Tabs 12 and 13 were addressed to the Plaintiff at the PO Box office of his solicitors, and the balance was sent to the Plaintiff. The inclusion of the letters and the references in the affidavit to them would seem to have had no purpose other than to show that there was notice to the recipients that Villacare was the Plaintiff's employer.

28The Plaintiff's final submissions were dated 26 June 2011 - somewhat later than the directed date of 3 June.

29Having regard to the issues apparent at the time it was sworn, the features of Mr Myles' Affidavit which I have listed in sub-paragraphs (i) to (xiii) of paragraph [27] above respectively inspire the following remarks:-

(i) By 24 May, the 13 January 2011 letter was at least largely irrelevant. The Plaintiff had accepted the statement in the letter that Villacare was the Plaintiff's employer and since the letter was written, the Defendant had had plenty of opportunity to provide information and had displayed an unwillingness to do so. As to the "TNT Freight" reference, see sub-paragraph (ii) below. Nevertheless, because the matter is arguable I am prepared to proceed on the assumption that there remained some relevance in the letter.

(ii) The five page statement provides no support for the incorrect statement in paragraph 6 of the Affidavit to the effect that in it the Plaintiff identified TNT Freight as the body that had loaded the trailer and otherwise for the Defendant's opposition to the Plaintiff's application(s). The only mention of TNT in the statement was in the passage:-

On 3 December 2006 I drove from Sydney to Dubbo to collect a trailer that had been trucked to the Dubbo Depot of my employer, Bunker Freight Lines Pty Limited. I did this trip each week and returned the trailer I collected to the TNT depot at Enfield, in Sydney. In all the times I had done the trip both ways, I had never been booked for speeding and I knew the road very well and drove carefully and responsibly. At all times. (sic)

(iii) Given that the orders made on 25 February were, as any practitioner should know, recorded in the Court file, the inclusion of the orders behind Tab 3 was not reasonably necessary. Although I do not rely on the fact, the orders were also repeated in the letter behind Tab 4.

(iv) The letter behind Tab 4 was also a waste. While potentially relevant to an argument that, notwithstanding the establishment of the grounds set out in Rules 5.2 and 5.3, the Court should on grounds of delay, exercise its discretion against the Plaintiff, that argument without much more evidentiary support - of which there was none - was doomed to fail.

(v) The letter behind Tab 5 contributed to the definition of the enquiries that the Plaintiff had made. The quotation from the letter in the body of the affidavit was a waste, not only because it was an extract from the letter but because the purposes referred to were apparent on the face of documents already filed with the Court.

(vi) The letter enclosing a copy of the letter of 13 January was irrelevant.

(vii) Possibly relevant.

(viii) Irrelevant. There was no need to advise in the Affidavit of the Defendant's continued opposition to the Summons nor to include the letter, advising also of opposition to the subpoenae. Furthermore, although this does bear on the appropriateness of including the letter in the affidavit, the repetition of the names of the persons subpoenad in the letter behind Tab 8 was pointless.

(ix)-(xii) Irrelevant. One of Mr Hiramanek's affidavits of 14 April makes clear that the confusion as to the identity of the Plaintiff's employer had been sorted out by Hickson's letter of 13 January. The withdrawal of the Plaintiff's submissions of or about 14 April could not be regarded as a qualification of this.

(xiii) Irrelevant, for the same reasons as set out in the immediately preceding sub-paragraph.

30I should say something more about the documents referred to in sub-paragraphs (ix) to (xiii) of paragraph [27]. Even if there was still a possible issue or doubt whether the appropriate party was Villacare or Bunker Freight Lines Pty Limited, the point that the Plaintiff or his solicitors had been told many, or 15 or so, times that the employer was Villacare, could have sensibly been made by a statement to that effect with, say, one or two examples. And again, even if more was thought to be needed, a list of dates of the other correspondence could have been provided without the mass of paper that was.

31In summary, the vast bulk - of the order of 90% - of Mr Myles' affidavit was a waste of paper, and no doubt much of the time taken in its preparation, both in its content and the physical compilation of its 83 pages (and 25 neat dividers) was similarly wasted. It is reasonable to infer that there was further waste of time imposed on those who subsequently had to read it. That was certainly the view I formed when, in preparation for the hearing on 14 July, I did so.

32In saying what I have, I recognise the possibility that a number of my criticisms might be regarded as carping. However, an 83-page affidavit is made up of 83 pages. Any consideration of whether it, of a significant part of such an affidavit is pointless or should be the inspiration for a special costs order requires attention to its individual pages and although in the ordinary course one just ignores unnecessary verbiage or paper, having embarked on the task I have, it has been appropriate to deal with the document comprehensively.

33In the course of the proceedings, Mr Myles' affidavit was followed by:-

(a) A further affidavit of Mr Hiramanek of 24 June 2011,

(b) 28 pages of further submissions on behalf of the Plaintiff, dated 26 June 2011,

(c) four pages of submissions by the Defendant dated 5 July 2011, and

(d) 13 pages of submissions in reply, dated 14 July 2011.

34In the first of these, it was made apparent that one of the Plaintiff's concerns was as to the correct identity of his employer, it being said that later instructions in the form of a notice of termination of employment had added confusion on the issue of who was the Plaintiff's employer. The notice, a copy of which had been annexed to Mr Hiramanek's affidavit of 24 June 2011 was dated 26 November 2008, was on letterhead of "Bunker Freight Lines", signed by someone described as the HR Manager of "Bunker Freight Lines Operations Pty Limited" and said that the Plaintiff's employment status with "Villacare Pty Limited, trading as Bunker Freight Lines Operations Pty Limited" was being reviewed.

35Reference was made to other evidence said to suggest that the relationship between Villacare and Bunker Freight Lines Group was very close and to make it reasonable to infer that correspondence to Bunker Freight Lines Pty Limited must have come to Villacare's attention. The further evidence included statements that they had the same registered office and Bunker Freight Lines was the sole shareholder of Villacare and the name of the employer in the Reply filed in the Workers Compensation proceedings was stated to be "Villacare Pty Limited (Bunker Freight Lines)".

36The submissions indicated that the Plaintiff was pursuing relief under both Rule 5.2 and 5.3, and wished to have, inter alia, the information referred to in [22] above, and information as to the relationship between his employer and the owner of, or company for which the Plaintiff drove, the truck.

37In the submissions of 5 July, it was asserted that the Plaintiff had been advised on numerous occasions that the Defendant was his employer, that the Plaintiff has failed to demonstrate that further litigation was not statute barred, and that in light of the fact Villacare was subject to a non-delegable duty to exercise reasonable care to provide the Plaintiff with a safe place of work, system of work, and safe plant and equipment, Mr Chandra's affidavit provided sufficient information to obviate the need for preliminary discovery.

38The submissions in reply directed attention to the limited nature of the Defendant's response of 5 July, said that the Plaintiff wished to pursue access to the documents produced under the subpoenae referred to above and, in the context of a detailed analysis of various items of legislation, submitted that further litigation was unlikely to be statute-barred.

39It was against that background that, as I have said, the hearing of the matter commenced before me on 14 July last, the parties reached agreement and orders for discovery in specified respects and for costs were made.

40I turn then to Mr Cameron's affidavit filed in response to my suggestion that perhaps an order for costs should be made against Hicksons. I note that 10 of the 11 documents annexed to that affidavit are copies of documents that could be expected to be found, and are, in the Court file. However, as that affidavit is not the subject of the present reasons, I take that, yet another complete waste of paper, no further.

41Mr Cameron became a solicitor in 1987 and a partner of the firm that is now Hicksons in 1998. He has been involved in litigation, primarily in workers compensation and related common law claims ever since. He is the partner who has the conduct of these proceedings on behalf of the Defendant. Under a heading "Affidavit of Doyle Myles sworn on 24 May 2011", Mr Cameron deposed that Mr Myles undertook matters under his supervision and, inter alia, that:-

(i) He was aware of his duty to the court in respect of the preparation of affidavits and appreciated that judges have differing views as to the extent of information to be included.

(ii) It was his practice to limit content to the information necessary to address the real issues in dispute but where a piece of correspondence is part of a larger exchange on a relevant topic he would normally include the total exchange so that the whole was available for reference should the need arise. In his view this practice was cost efficient.

(iii) At the time Mr Myles' affidavit was prepared there were no written submissions to identify the real issue in dispute although it seemed likely the Plaintiff would seek to pursue his application only under Rule 5.3. The significant issue in relation to the Rule 5.2 application of the Plaintiff's asserted confusion involving the identity of the employer seemed to have been resolved by correspondence.

(iv) He "formed the view the only evidence that the Defendant could adduce was the correspondence relating to the issues identified by (Hicksons) in opposition to the summons. ... (He) did not believe it appropriate to "cherry pick" the correspondence to suit the case. (He) considered it appropriate to adopt a conservative approach in relation to the documents to be annexed rather than limiting the documents attached selectively so as to reduce the size of the affidavit and exhibits. (He) was unaware of what issues any further affidavit or submission of the Plaintiff might raise.

(v) He said he thought it appropriate to exhibit correspondence over the entire period to show that whenever the Plaintiff had suggested the employer may have been other than Villacare the response had identified Villacare as the employer.

(vi) A draft of the affidavit was sent to counsel and there was conversation between Mr Myles and counsel. (Mr Cameron did not say what the substance of this conversation was.)

(vii) Some exhibits to the Affidavit demonstrated that the Plaintiff had failed to comply with all consent orders made prior to 21 April 2011 and this was relevant to both the Plaintiff's prospects of success and to a costs order.

(viii) Other exhibits demonstrated the Plaintiff was seeking to circumvent the preliminary discovery process by issuing subpoenae.

(ix) Further exhibits rebutted the evidence and submissions of the Plaintiff that he remained uncertain as to the identity of his employer and rebutted the Plaintiff's assertion that Hicksons had signed an agreement under s 66A of the Workers Compensation Act which identified Bunker Freight Lines as the employer.

42This evidence inspires a number of comments because it displays a regrettable approach to litigation which, if it has not become the norm, has certainly become increasingly common. Firstly, in matters as simple as applications under Rules 5.2 and 5.3, one should neither need not expect written submissions to define the issues. (That said, it is fair to acknowledge that in this case the written submissions contribute a great deal to any understanding of the position so far as any Limitation of Action is concerned.)

43Secondly, the fact that a piece of correspondence is part of a larger exchange on a relevant topic provides no reasonable basis to "normally" include the total exchange so that the whole is available for reference should the need arise. Certainly there are occasions when including the whole is appropriate, eg, when it is necessary to avoid a misleading impression or because other parts are likely to be needed, but the mere possibility that more may be needed provides no basis for Mr Cameron's approach.

44Thirdly, the fact that some evidence is the only evidence that a party can adduce provides no grounds for adducing it if, as Mr Cameron thought and I have held, the subject of that evidence was not at the time an issue. Fourthly, evidence should be limited to issues that have been raised expressly or inherent in the proceedings. It is not a reason for adducing evidence that the opposite party might raise further issues.

45Fifthly, the copies of orders or correspondence annexed to the affidavit added nothing to the ability to mount an argument that the Plaintiff had not complied with orders or was seeking to circumvent the preliminary discovery process.

46Sixthly, documents annexed certainly contained many statements to the effect that Villacare was the Plaintiff's employer and the number of such statements (which, as I have said, could have been provided, without annexing the vast bulk of documents) did tend to rebut the Plaintiff's claim of uncertainty as to his employer's identity. However, those documents did nothing to explain the not insignificant references to Bunker Freight Lines in other documents to which Villacare, and in some cases, Hicksons, appeared to have been a party. (I should add at this stage that I do not regard the matters referred to in this paragraph as arguing for any order for costs being made against Hicksons.)

47One of the most important tasks of lawyers engaged in litigation is to sort the relevant from the irrelevant and to make the judgments enabling this to occur. Experience over 40 years shows that, increasingly, this is not being done and the Court and the parties are obliged to deal with, as occurred here, 50 or so pages and in other cases hundreds of pages when, at the most, one or a much smaller number would do. Although the circumstances are different, one only has to reflect on the number of occasions when, of hundreds of documents included in "Tender Bundles" only a relative few are referred to, to illustrate the point.

48Whether the change in practice is inspired by a greater fear of being sued, or the fact that charging for time or copies often rewards an increase in the size of the task or in the volume of paper, or simply avoids having to make decisions, there can be no doubt that the courts are being deluged with material that years ago would not have passed solicitors' desks or counsel's chambers and should not now.

49Mr Cameron said that his approach in relation to correspondence is cost efficient. It may be in some - I suspect few - cases but in my experience it generally is not and it was not in this case. Furthermore, it is not clear that in making the judgment he has, Mr Cameron has taken into account the time that counsel, or the opposite party's lawyers or the judge often have to spend in reading the unnecessary documents in order to reach a conclusion that they are irrelevant or otherwise not needed.

50In the result, there is nothing in Mr Cameron's affidavit to cause me to depart from the conclusion expressed above as to the waste involved in the preparation of, and consequent upon, Mr Myles' affidavit.

51However, it is necessary to take account also of the fact that in the Plaintiff's submissions of 26 June, the issue of the identity of the Plaintiff's employer was resurrected. To no significant extent does this mute my criticism as to the extent of the volume of the documents annexed to Mr Myles's affidavit but those submissions did at least make their subject matter, ie, the references to Villacare, relevant.

52I turn then to the second cause of my disquiet. Section 56 of the Civil Procedure Act, so far as is presently relevant, provides:-

"(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.

...

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(3A) A party to a civil dispute or civil proceeding is under a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of Part 2A (if any) that are applicable to the dispute or proceedings in a way that is consistent with the overriding purpose.

(4) Each of the following persons must not, by their conduct, cause a party to a civil dispute or civil proceedings to be put in breach of a duty identified in subsection (3) or (3A):

(a) any solicitor or barrister representing the party in the dispute or proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3), (3A) or (4) in exercising a discretion with respect to costs.

53The first issue that arises in any consideration of the impact of this provision is to identify each relevant component of "the real issues in the dispute or proceedings". In the circumstances of this case, it seems to me that the only possible description of the issues must be the Plaintiff's entitlement to preliminary discovery under Rule 5.2 or 5.3, that being the issue that arose under the proceedings commenced by the Plaintiff's summons. Those were the only proceedings and it is not obvious that there was any other dispute. Certainly, other proceedings in the form of claims for damages against a number of persons, Villacare being the Plaintiff's employer, any other company involved in the ownership or operation of the prime mover and trailer, and whoever loaded the trailer, were contemplated but there is no evidence to suggest that any such claims, even in correspondence, had been made. It is impossible in that situation to conclude that there was any dispute between the Plaintiff and such organisations.

54Another question is as to the content of the duty that arises under s 56(3). It cannot have been intended that the duty should extend to the early abandoning of a defence just because that defence should ultimately be abandoned or held to be unmeritorious. Furthermore the references in the sub-section to the processes, directions and orders of the court make clear that the subsection is directed to compliance with interlocutory or procedural matters. On the other hand, the expression of the general duty and the use of the words "and, to that effect" before reference to the processes, directions and orders means that the obligation is not confined to involvement in those three areas. The obligation would extend to not engaging in interlocutory or procedural conduct antipathetic to the just, quick and cheap resolution of the real issues in the dispute.

55Sub-section (3A) came into operation only on 1 April 2011. The relevant provisions of Part 2A apply only to civil disputes that arose after that date and to civil proceedings that commenced after 1 October 2011. The sub-section accordingly has no relevant application here.

56I have not so far found it necessary to detail the evidence that argues for the view that Villacare should have provided the information sought by the Plaintiff without the need for an application being made under Rules 5.2 or 5.3 at all or should have consented to the orders sought at an early stage and certainly after it had time to consider the affidavit of Mr Chandra. It is sufficient to say that there was a deal of such evidence. On the other hand, Mr Cameron said that the obligation to give discovery was likely to impose significant expense on an employer, an expense not covered by insurance, that employers dislike the monetary burden and disruption of business where they have mandatory insurance cover and Allianz (on whose instructions Hicksons were acting) prefers that its clients not be required to participate actively in litigation where avoidable, that he formed the view that the culpability for the accident lay with the Plaintiff and his instructions were that Villacare was the legal entity against which action should be taken. The written submissions of Villacare of 5 July 2011 also show that there were serious questions whether any claim by the Plaintiff was barred by Limitation of Action provisions.

57In the result, I do not think that Villacare's failure to consent prior to 14 July 2011 to the Plaintiff's application for preliminary discovery amounted to any breach of s 56 of the Civil Procedure Act. It follows that Hicksons did not cause Villacare to be put in breach in that regard.

58I return to Mr Myles' affidavit. So far as is presently relevant, s 99 of the Civil Procedure Act provides:-

(1) This section applies if it appears to the court that costs have been incurred:

(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or

(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following:

(a) It may, by order, disallow the whole or any part of the costs in the proceedings:

(i) ...

(ii) In the case of a solicitor, as between the solicitor and the client,

(b) It may, by order, direct the legal practitioner:-

(i) ...

(ii) In the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,

(c) It may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party.

(3) Before making such an order, the court may refer the matter to a costs assessor ... for enquiry and report

(4) The court may direct that notice of any proceedings or order under this section with respect to a legal practitioner be given:

(a) ...

(b) In the case of a solicitor, to the client.

(5) The court may give ancillary directions to give full effect to an order under this section ...

59There is nothing in the circumstances of this case that could be thought to be "the serious neglect, serious incompetence or serious misconduct" referred to in s 59(1)(a). However, the conclusions at which I have arrived do lead to the view that costs were incurred, in the terms of sub-section 1(b), "without reasonable cause". What I have said above is sufficient to demonstrate why I have reached that conclusion.

60Reference was made by counsel to two decisions in which the jurisdiction to make orders under this provision was considered - Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 and a decision of Schmidt J in DJZ Constructions Pty Ltd v Paul Pritchard [2010] NSWSC 1472 but while I have read those cases, in the circumstances here I do not regard it as necessary to dilate upon what was said in either of them.

61I should also acknowledge that in reaching the conclusion I have, I am not unconscious of further aspects of Mr Cameron's affidavit. He said that in this matter Hicksons acted on the instructions of Villacare's workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited: There is substantial competition between solicitors acting for such clients and it would put Hicksons' relationship with Allianz at risk should Hicksons over-service or overcharge and Mr Cameron would act to prevent this occurring: An agreement between Allianz and Hicksons provides for all work injury damages matters to be billed in accordance with Schedule 7 of the Workers Compensation Regulation 2010 absent prior agreement to the contrary and no such agreement exists. Mr Cameron asserted that "had Hicksons advised Allianz on receipt of the Summons to consent to the preliminary discovery sought on behalf of the Plaintiff and Allianz had accepted that advice, there would be no difference in the fees chargeable under Schedule 7".

62While this, and other evidence in Mr Cameron's affidavit would have a clear relevance if there was a suggestion that Mr Myles' motivation had been to generate fees, it has little if anything to do with the issue of whether costs were incurred otherwise "improperly or without reasonable cause".

63The costs so incurred were those flowing from the vast bulk of unnecessary material in Mr Myles' affidavit. The question then arises what should be done. Section 99 of the Civil Procedure Act gives the Court a discretion but costs are such a major factor in litigation that in my view, where they have been incurred improperly or unreasonably, the discretion should normally be exercised so that they are borne by the legal practitioner responsible (or the firm of which he is a member or employee - a matter to which I direct attention below). I am satisfied that that is the proper approach in this case and that, subject to my further remarks, I should make orders under s 99(2)(a)(ii) and (b)(ii), pursuant to s 99(5) order repayment of costs disallowed under s 99(2)(a)(ii), and also, pursuant to s 99(4), require that a copy of my orders and of these reasons be given to Villacare Pty Limited and to Allianz Australia Workers Compensation (NSW) Limited.

64A qualification to what I have said in the preceding paragraph arises from statements made by Mr Cameron in paragraphs 11 and 12 of his affidavit. There he said:-

11. The WCR 2010 provides that workers compensation matters are to be billed pursuant to schedules that provide for fixed fees. The WCR 2010 provides that all work injury damages (WID) matters, within which the present proceedings fall, are to be billed in accordance with schedule 7 of the Regulation, which schedule provides that costs for a defendant's solicitors are payable on resolution of the claim. The amount of those costs is fixed.

12. The provisions on costs contained within the SLA provide that a panel solicitor may charge in excess of the legislated scales provided that the consent of Allianz to do so is obtained in advance, but this relaxation is restricted to matters which are not WID claims. Whilst I did agree with the instructing officer at Allianz that Counsel's fees on the hearing should be increased beyond that for which the Schedule provides, I determined that I would not seek any additional costs on behalf of Hicksons and accordingly no fee has or will be charged in consequence of any work undertaken in this application that might be thought to be additional to that that might have sufficed.

13. ... At no time has Hicksons charged fees falling outside schedule 7 in connection with the claim and cannot legally do so. Were Hicksons to charge in excess of scale it would have no entitlement to recover that excess.

65This passage is not as clear as it might be. On one view, particularly as Schedule 7 does not seem to refer to an application for preliminary discovery, Mr Cameron seems to be saying that the application will not result in any charges by Hicksons (other than on account of counsel) additional to what would be incidental to a WID claim in any event. However, the reference "no fee has or will be charged in consequence of any work undertaken in this application that might be thought to be additional to that that might have sufficed" (my emphasis) suggests that there will be some charge. On balance, I think the former view is the more probable construction of what Mr Cameron meant and, if so, it is inappropriate that any order be made under s 99(2)(a)(ii) except in respect of the costs (associated with the affidavit) of counsel. Certainly, if any other costs have been charged, to the extent they relate to Mr Myles' affidavit, the vast proportion of them should be refunded.

66A further issue concerns the practicalities involved in an order under s 99. There are obvious disadvantages in simply making an order in general terms leaving it to a lay client and a solicitor (who will now have an interest adverse to his client) to then argue or have assessed costs, particularly if, as may often happen, the costs relate to part only of a legal practitioner's work. It is undesirable that a s 99 order be the occasion for another cost-incurring dispute.

67Furthermore, in this case it is likely that the costs associated with, or resulting from, Mr Myles' affidavit were never separately quantified. One does not prepare or read an affidavit and note down how much time is spent on one paragraph or annexure rather than another. Accordingly, it seemed to me desirable to adopt the procedure provided for in s 99(3) and refer the matter to a costs assessor for enquiry and report. At the suggestion of the Senior Deputy Registrar Costs Assessment, Mr Howard, the reference was made to Mr John Bartos who provided a report that I have attached as an annexure to these reasons.

68It seems to me appropriate to adopt Mr Bartos' report but, in light of my conclusion, expressed in [31] above, that only something of the order of 90% of Mr Myles affidavit was a waste, and a desire to adopt a conservative view, I propose to order that only 80% of the costs estimated by Mr Bartos be paid. However, because those against whom any order will be made have not had an opportunity to canvas the quantification in Mr Bartos' report, and although I do not think it necessary to do so - c.f. Practice Note SC Gen 5 - I will give limited liberty to apply in respect of that topic.

69The resulting amounts are:-

80% x ($1,140 + 114.00) = $1,003.20

80% x ($2,232 + 223.20) = $1,964.16

70Further questions arise concerning in whose favour and against whom an order should be made. Section 99(2)(b) refers to payment "to the client". Although Mr Cameron makes it clear that his instructions have been provided by Allianz Australia Workers Compensation (NSW) Limited and not Villacare Pty Limited, it seems clear that Villacare Pty Limited is technically Hicksons' client and in any event the costs order I made in favour of the Plaintiff on 14 July last was against Villacare. In these circumstances my order for payment now of a portion of the costs incurred on the Plaintiff's side of the record, and ordered on 1 July last to be paid by the Defendant, should be for payment to Villacare.

71However, as I have indicated, a copy of these reasons should be given to both Villacare and Allianz.

72Section 99 envisages that any order for payment will be against the "legal practitioner" who is responsible for the circumstances in which costs have been incurred improperly or without reasonable cause. While I do not suggest that this terminology means that an order can never be made against a firm, the more natural operation of the provision seems to me to be that any order should be made against one or more individuals. The affidavit is by Mr Myles and clearly he must be regarded as having responsibility for it. However, it is clear from Mr Cameron's affidavit, particularly the parts to which I have referred in [41] above that he also was substantially responsible. It seems to me any order under s 99(2)(b) should be made against both of these persons though obviously Villacare will not be entitled to be paid twice.

73Section 99(2)(a) however talks of disallowing costs as between the solicitor and client. Given his position, it seems to me inherently unlikely that there were costs between Mr Myles and any client. However, Mr Cameron was a partner. Thus it seems to me that any order under s 99(2)(a), and any consequential order under s 99(5) should be against Mr Cameron.

74Accordingly, the orders that I make are:-

(i) Pursuant to s 99(2)(a)(ii) of the Civil Procedure Act 2005, disallow as between Stewart William Cameron of Hickson's Lawyers on the one hand and Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited on the other 80% of the costs of counsel in considering, settling or otherwise dealing with the affidavit (in draft or final form) of Doyle Morgan John Myles of 24 May 2011;

(ii) Order, pursuant to s 99(5) of that act that the said Stewart William Cameron pay to Villacare Pty Limited the sum of $1,003.20 on account of the costs of counsel in considering, settling or otherwise dealing with the affidavit (in draft or final form) of Doyle Morgan John Myles of 24 May 2011;

(iii) Order, pursuant to s 99(2)(b)(ii) of the Civil Procedure Act 2005 that Doyle Morgan John Myles and Stewart William Cameron of Hickson's Lawyers pay to Villacare Pty Limited the sum of $1,964.16;

(iv) Order that the said Stewart William Cameron provide to each of Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited a copy of these orders and reasons;

(v) Grant liberty to apply by Notice of Motion returnable before me at 9.30 am on Thursday 17 May 2012, and served on Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited on or before Monday 14 May 2012, in respect of quantification the subject of Mr Bartos' report, and any consequent adjustment of the amounts referred to in orders (ii) and (iii) hereof.

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Decision last updated: 18 May 2012