Milne v Benjafield & 3 Ors [2000] NSWSC 171

New South Wales Supreme Court

CITATION : Milne v Benjafield & 3 Ors [2000] NSWSC 171 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1712/99 HEARING DATE(S) : 16/03/00 JUDGMENT DATE : 16 March 2000

David Keith Gordon Milne (First Plaintiff) Peter Vivian Benjafield (First Defendant) PARTIES : Benlaw Pty Limited ACN 002 059 350 (Second Defendant) Colin David Mitty (Third Defendant) Franola Pty Limited (Fourth Defendant) JUDGMENT OF : Santow J

COUNSEL : J G Bamford (Solicitor) (Plaintiff) J E Harrowell (Solicitor) (Defendants) SOLICITORS : Bamford Hogg (Plaintiff) Hunt & Hunt (Defendants) CATCHWORDS : PRACTICE AND PROCEDURE — " Just, quick and cheap" as an overriding purpose — Effect in particular case — Use of referee and cost consultant to avoid lengthy and frequent applications. DECISION : Consent orders made.

IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY

SANTOW J

No. 1712/99 David Keith Gordon Milne Plaintiff Peter Vivian Benjafield Defendant

JUDGMENT — ex tempore 16 March 2000

1 This judgment follows orders earlier made. The orders relate to the outcome of a dispute between the Plaintiff and the First Defendant relating to the break up of a partnership between solicitors. 2 As part of that break up orders have been subsequently made inter alia referring certain matters to a referee assisted by a cost consultant and requiring the production of various materials to enable the valuation of work in progress in relation to files for client legal work to be assessed. 3 The relevant orders have involved some intensity of dispute and I simply note the orders presently before being those of Hodgson CJ in Eq dated 13 August 1999 and Hamilton J of 3 February 2000 and the hearings they have entailed. They have involved frequent applications complaining of non-compliance on both sides. 4 With disputes of such intensity, there is always the propensity for the court process to fail in achieving "the just, quick and cheap resolution of the real issues in such proceedings", the overriding purpose now of the Supreme Court Rules since 28 January 2000. With the co-operation of the parties, a set of orders has now been made which leads to the determination in more economic fashion of the relevant matters by a referee so assisted. This is clearly cheaper than the hours in court otherwise entailed, more thorough than such a court process could be. 5 Unusually, I have included now in the matters referred to the referee the issue of whether there has been past non-compliance with orders requiring production of various information concerning the relevant legal files. This is with the practical overlay that if the current process before the referee identifies any information that is still missing, the Court need make no order as to that past non-compliance unless that information is still material and further order is warranted. After all, the purpose of these various orders and directions from the past is to value work in progress. If that is now achieved through the referee's use of a cost consultant then there is little point in an elaborate post mortem with further costs. 6 My orders do however recognise that if past non-compliance is found and if the circumstances warrant this, cost orders can be made in respect of that. That will be a matter for common sense judgment at the time if such orders are pressed. 7 One final matter, relates to an apparent non-compliance by the Plaintiff in failing to hand over his list of files by reason of the Plaintiff's contention that what the Defendant had handed over did not comply with the earlier orders and directions. Assuming what is required, literally, under the relevant orders was an exchange, common sense dictates that if the Plaintiff is in a position to hand over his list but has not in his opinion received a corresponding one from the Defendant, that the hand over should nonetheless take place. This is unless there is some substantial forensic disadvantage in doing so or some confidentiality attaching to the material requiring reciprocation. So far as I am aware neither of these considerations operate. For the future I welcome that the plaintiff has now handed over his list and hope that this will be a good augur for the future. 8 The parties have every reason to wish to conserve costs. There is no need for unnecessary adversariality nor frequent and expensive applications to the Court, when common sense should be able to resolve the matter between the legal advisers. The new Rules mean that the court is no longer to play the role of a judicial "nanny", doing the parties' job for them.