Supreme Court New South Wales Medium Neutral Citation: Coshott v Spencer (No 2) [2020] NSWSC 1175 Hearing dates: 31 August 2020 Decision date: 31 August 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Refuse the plaintiff's application for adjournment made by notice of motion filed on 28 August 2020. (2) Stand over the plaintiff's application for leave to file a third further amended statement of claim to 9.30am on 1 September 2020. (3) Order the plaintiff to pay the defendants' costs of the application for adjournment. Catchwords: CIVIL PROCEDURE — Hearings — Adjournment — Application by plaintiff for adjournment in week prior to hearing — Where case had been listed since November 2019 — Adjournment refused Legislation Cited: Civil Procedure Act 2005 (NSW), pt 6, ss 56, 58 Legal Profession Uniform Law (NSW), s 10 Category: Principal judgment Parties: Ljiljana Coshott (Plaintiff) Keith Robert Spencer (First Defendant) David Adams (Second Defendant) Representation: Counsel: J O'Sullivan (Plaintiff) R Perla (Defendants) Solicitors: Murphy Lyons (Plaintiff) Gilchrist Connell (Defendants) File Number(s): 2018/203967 Judgment Introduction 1. By notice of motion filed on 28 August 2020 Ljiljana Coshott (the plaintiff) sought an adjournment of the proceedings, which was opposed by Keith Spencer and David Adams (the defendants). The motion was heard on 31 August 2020. At the conclusion of the motion I dismissed the application for an adjournment. As there were some difficulties with the AVL connection, I decided to give my reasons in writing rather than ex tempore. What follows are my reasons for refusing the adjournment. The facts 1. The proceedings arise following the retainer by the plaintiff of the defendant, a solicitor, in July 2012 in proceedings SYG1738/2010 in the Federal Magistrates Court, as it was then known (the FMC proceedings) and in November 2013 in proceedings 2010/234928 in this Court (the SC proceedings). The plaintiff alleges that the defendants were negligent when acting for her in these two proceedings. The statement of claim was filed on 3 July 2018. As a consequence of the defendants raising issues about the statement of claim, the plaintiff filed an amended statement of claim on 4 September 2018. On 4 December 2018, the defendants sought to have the amended pleading struck out. 2. On 22 February 2019 the motion was heard by Davies J who struck out certain paragraphs of the pleading and granted leave to the plaintiff to file a further amended statement of claim. From that time, his Honour case-managed the proceedings. Eventually, a further amended statement of claim was filed on 26 April 2019. Directions were made for the filing of a defence and evidence. 3. On 25 August 2019, the plaintiff's solicitors sought production from the defendants of their files for the FMC proceedings and the SC proceedings. In October 2019, the defendants' solicitors sent links to the plaintiff's solicitors to the scanned files. 4. On 8 November 2019, there were further directions concerning the further amended statement of claim, which led to a direction that a second further amended statement of claim be filed by 12 November 2019. The second further amended statement of claim was filed on 11 November 2019. On 25 November 2019, Davies J directed the parties to approach the Listing Manager for a hearing date and noted the estimate of three days. 5. On 26 November 2019, the matter was listed for hearing for three days commencing on 1 September 2020. 6. On 10 August 2020, the defendants' solicitors wrote to the plaintiff's solicitors and informed them that the defendants had discovered more material relating to the FMC proceedings. They sent a link to the scanned file and invited them to collect hard copy files. They explained the delay as follows: "We are instructed that these documents were not produced earlier in the current proceedings because they had not been filed under the Federal Court Proceedings, but rather under other matters related to the Coshott family. It was only on recent inspection of those files that our client found the documents." 1. In accordance with the Practice Note, the defendants delivered a court book to my chambers which included an outline of opening submissions prepared by Mr Perla, who appears on the defendants' behalf. The submissions purport to identify fatal defects in the plaintiff's case. The plaintiff also provided a court book to my chambers. It contained a chronology, a list of questions for me to answer, a witness list and a copy of the affidavits sought to be relied on by the plaintiff in the substantive hearing. There was no indication whatsoever from the plaintiff's court book that the matter would not proceed. 2. On 24 August 2020, the defendants served a subpoena to give evidence on Robert Carey. Mr Perla explained that Mr Carey was relevant only because of the following evidence in the first defendant's affidavit: "53 As such, on 20 November 2013, I attended the Supreme Court for the hearing of the Second Proceedings with Robert Carey, counsel for the plaintiff. Neither the plaintiff, Robert, Ronald, Michael or James was in attendance. I recall that Robert was giving instructions to Mr Carey directly by phone. 54 I recall Mr Carey sought for the hearing to be adjourned. I recall that Justice Adams refused the adjournment and Mr Carey asked for the hearing to be stood down for him to take further instructions, which it was. 55 I recall that, at the time, Robert intended to, or had, commenced similar proceedings to the Second Proceedings in the District Court. I recall that, following the hearing being stood down, Mr Carey spoke to Robert by telephone. I was near to Mr Carey when he spoke to Robert, although the conversation did not occur on speakerphone. However, I recall that Mr Carey said to Robert words to the effect: 'If these proceedings are unsuccessful you cannot run the same argument in the District Court. There will be an issue estoppel.' 56 Once this telephone conversation was over, I recall Mr Carey saying to me words to the following effect: 'Robert has instructed us to have the matter dismissed.' 57 I recall that, when the hearing recommenced, that Mr Carey advised the Court of his instructions, following which, Justice Adams made orders that the Second Proceedings were dismissed and for the parties to make written submissions on the matter of costs." 1. Mr Perla intimated that the subpoena had been issued as a precautionary measure and it may be that it was not called on. 2. On 25 August 2020, I listed the matter before me for mention on 27 August 2020 to confirm the estimate of time for the hearing. At that hearing, Mr O'Sullivan, who had recently been briefed to appear for the plaintiff informed me that the plaintiff proposed to apply for an adjournment of the proceedings as she was not ready. The plaintiff's solicitor had informed the defendants of the application on the previous evening. I made directions for the filing of a notice of motion and affidavit in support and for any evidence in response and listed the adjournment application for hearing on 31 August 2020. 3. The notice of motion sought not only an adjournment of the proceedings but also leave to file a third further amended statement of claim. The relevant amendment alleged that the defendants had failed to advise the plaintiff of the usual practice in the Federal Magistrates' Court to make lump sum orders for costs and had failed to apply for a lump sum costs order instead of an order that costs be as assessed or agreed. The parties agreed that this application could be heard tomorrow morning at the commencement of the hearing. The evidence in support of the application 1. The plaintiff relied on an affidavit from her solicitor, Mr Lyons and tendered some documents. Mr Lyons deposed that he had been instructed that "the plaintiff has relied on her husband, Robert Coshott, a former solicitor, to assist her in preparing this matter for hearing in order to save costs". Mr O'Sullivan confirmed that Mr Coshott's name had been removed from the roll of legal practitioners. I note that it follows from this circumstance that Mr Coshott is prohibited from giving legal advice to his wife or to anyone else: s 10 of the Legal Profession Uniform Law (NSW). 2. Mr Lyons deposed that he had, in early July 2020, sought to brief counsel, whom he was subsequently told was not available. Later, on 9 August 2020, he forwarded a brief to Mr O'Sullivan, who accepted it on 17 August 2020. Mr Lyons deposed as to the delay as follows: "I am instructed that the Plaintiff delayed briefing counsel in order to save costs." 1. Mr Lyons deposed that he expected that the plaintiff's tender bundle would be completed and served by the morning of 31 August 2020 and that this would include some of the documents provided on 10 August 2020. Mr Lyons also deposed that Mr O'Sullivan had advised him to seek to amend the statement of claim. He deposed that, since 20 August 2020, he has been attempting to obtain a suitably qualified expert "to depose to the matters alleged in that paragraph but am yet to find an expert who has the necessary qualifications and availability to give evidence in these proceedings". 2. Mr Lyons also foreshadowed that the plaintiff might want to tender documents from the file in the SC proceedings. He said that the file had not yet been inspected. Mr O'Sullivan explained that his solicitor had been informed that the Registry is closed because of the COVID-19 pandemic but acknowledged that no approach had been made to the Court to access the file. Consideration 1. The reason the plaintiff wants an adjournment is that she did not allow her solicitor to brief counsel in time to ensure that the case was properly prepared to counsel's satisfaction in time for the hearing. Mr O'Sullivan informed me that his solicitor required another week or two to attend to all matters other than the obtaining of an expert report, which he considered could be obtained within a week. He submitted that thereafter there would need to be time allowed for the defendant to respond to the plaintiff's expert report. Mr O'Sullivan frankly acknowledged that the plaintiff had chosen to leave the preparation of the matter to her husband, Robert, who is no longer entitled to practise law. He informed me that he had written instructions not to oppose an order that the plaintiff pay the defendants' costs thrown away by the adjournment. 2. The difficulty is that the days are long gone when costs could be regarded as a salve for delays in litigation. These proceedings were commenced shortly prior to the expiry of the limitation period for the alleged negligence associated with the FMC proceedings. They were the subject of several directions hearings between the first, on 21 August 2018 and the one on 25 November 2019 when the parties were directed to approach the Listing Manager for allocation of a hearing date. A date nine months hence was allocated, presumably because of the length of the matter, three days, or to accommodate the legal advisers. In most of that period the plaintiff would appear to have done little, if anything, on the matter, except perhaps to allow her husband to purport to prepare it. 3. The adjournment application was made on the basis of advice given by Mr O'Sullivan who had only been briefed on 17 August 2020, a fortnight before the application was made. 4. It is a matter of common experience that issues arising in litigation may become apparent as the hearing date looms and efforts to prepare a case intensify. However, that is no excuse for earlier lassitude. The three days that were allocated to this case could not be allocated to any other case. Other litigants have had to wait because the plaintiff chose not to instruct her solicitor to brief counsel although she was prepared to represent to this Court that the matter was ready for hearing and could take a date. 5. While Mr O'Sullivan submitted that an expert's report could be available within a week, it is of note that his solicitor has been trying to get one since 20 August 2020, without success. 6. Part 6 of the Civil Procedure Act 2005 (NSW) requires me to make orders and give directions to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56. I am required to take into account the "dictates of justice", which requires me to have regard to those matters in s 58(2) which I consider to be relevant. I do not regard the issues in the case to be of particular difficulty or complexity. The matters raised by Mr O'Sullivan would have been apparent on earlier consideration. The plaintiff has not approached the proceedings with any particular expedition. She has amended her pleadings on several occasions and failed to comply with directions of this Court as to filing documents and providing particulars. She has not availed herself of the possibility to obtain relevant evidence before recently and has deferred briefing counsel until close to the hearing. 7. As to the degree of injustice that would be occasioned, this is difficult to determine. While Mr O'Sullivan accepted, for the purposes of the adjournment application that it would be unlikely for the plaintiff not to have been ordered to pay the costs in the FMC proceedings, he submitted that the difference between the scale costs of $1,980 and the amount of costs as agreed or assessed was significant and gave rise to a claim for substantial damages. Since the adjournment has been refused, the plaintiff will not be able to establish the usual practice of the Federal Magistrates Court by reference to expert opinion. If the amendment is allowed, she may be able to establish it in some other way. Mr O'Sullivan appeared hopeful that he could establish it in the course of cross-examining the defendants' witnesses or by reference to the court rules or Practice Note. It may be that even if an adjournment had been granted, no such evidence would be forthcoming in any event. In these circumstances, I am not satisfied that the degree of injustice to the plaintiff by the refusal of her application for adjournment is such as to outweigh the injustice to the defendants by further delay or the inconvenience to the court and the disruption to the administration of justice in having a case which was listed for hearing, adjourned in circumstances where the dates could not be reallocated to another case. 8. As to the documents to be tendered, it would appear from Mr Lyons' evidence that the plaintiff has had sufficient time to assemble the documents. To the extent to which she needs access to court files, that is a matter which could have been arranged with the Court some time ago. 9. In all of these circumstances, I am not persuaded that it is appropriate to adjourn the hearing of the matter, which accordingly will proceed before me tomorrow morning. Orders made 1. At the conclusion of the hearing on 31 August 2020 I made the following orders: 1. Refuse the plaintiff's application for adjournment made by notice of motion filed on 28 August 2020. 2. Stand over the plaintiff's application for leave to file a third further amended statement of claim to 9.30am on 1 September 2020. 3. Order the plaintiff to pay the defendants' costs of the application for adjournment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2020