Supreme Court New South Wales Medium Neutral Citation: Saad v Chubb Security Australia Pty Ltd t/as Chubb Security [2015] NSWSC 715 Hearing dates: 4 & 5 June 2015 Date of orders: 05 June 2015 Decision date: 05 June 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. The hearing to commence 15 June 2015 is vacated. 2. The Plaintiff is to pay the Defendants' costs thrown away by the vacation of the trial, including the costs of this application, on an indemnity basis as agreed or assessed. Catchwords: PROCEDURE – adjournments – application to vacate hearing date – new solicitors acting for Plaintiff – file only recently delivered from former solicitors – failure of former solicitors to comply with procedural directions to prepare matter for trial. COSTS – late application to vacate trial – fault of Plaintiff's former solicitors – costs payable by Plaintiff on indemnity basis – whether costs should be payable forthwith. Category: Procedural and other rulings Parties: Victoria Swindells (nee Saad) (Plaintiff) Chubb Security Australia Pty Ltd t/as Chubb Security (First Defendant) Commonwealth Bank of Australia Ltd (Second Defendant) Representation: Counsel: S O'Halloran (Plaintiff) A Dawson (First Defendant) I Todd (Second Defendant) Solicitors: Carroll & O'Dea (Plaintiff) HWL Ebsworth (First Defendant) Turks Legal (Second Defendant) File Number(s): 2010/274418 Judgment 1. These proceedings commenced on 18 August 2010. They have had a chequered history. Challenges were made to causes of action brought against each of the defendants in 2011. On 4 October 2012 in a lengthy judgment Hall J struck out certain claims that were made and gave leave to replead other causes of action. 2. Even accepting that the causes of action were clarified by his Honour's judgment in October 2012 the proceedings have proceeded at an extremely slow pace since that time. They were eventually fixed for hearing by the Registrar on 10 September 2014, such hearing date being 15 June 2015. At that time directions were made for the service of lay witness statements and expert evidence, all of which was to be completed by the end of 2014. 3. Mr Stuart Moffet and Mr Terry Tobin QC were the counsel the solicitors had briefed for the Plaintiff. Although apparently when the proceedings were set down Mr Tobin was available for hearing on 15 June, he became unavailable for reasons which have never been explained. That led the Plaintiff's then solicitors to ask the defendants to agree to vacate the hearing date in June of this year and suggest that November this year would be a time that suited everybody, at least on the Plaintiff's side. 4. The directions made by the Registrar in September 2014 were not complied with and the matter came back before the Registrar in March of this year. There were two appearances before the Registrar, the second of which was on 23 March when the Plaintiff's then solicitor appeared for the Plaintiff and informed the Registrar that the Plaintiff had terminated their retainer. He said the Plaintiff was dissatisfied with how he had conducted the litigation. The Plaintiff was in court on that day. The Registrar made orders extending the time for compliance with the directions which had been made in September 2014 and stood the matter over for directions to 4 June 2015, presumably to ensure that all of those directions had been complied with so the hearing date of 15 June 2015 could be maintained. 5. On 8 April 2015 Mr Stephen O'Halloran from Carroll & O'Dea was retained to act for the Plaintiff in the proceedings. He thereafter corresponded immediately with the Plaintiff's former solicitors to obtain the file from them. Negotiations then ensued in relation to the costs that the former solicitors said were owed to them and for arrangements to be made about counsels' fees. 6. Mr O'Halloran subsequently forwarded a letter to the Registrar of the court on 8 May informing the Registrar that he had recently received instructions to act for the Plaintiff and he indicated that he would be applying to adjourn the matter. He offered a number of dates shortly after 8 May that he was available for such an application to be dealt with on a relisting of the matter pursuant to a liberty to apply which had been given by the Registrar on 23 March. 7. It is not apparent from anything in the court file why the matter was not relisted at an early opportunity. Rather, it remained listed simply on 4 June before the Registrar. It was then sent to me as the duty judge on that day to deal with the application to vacate the hearing. 8. Mr O'Halloran said that the files had only be delivered from the former solicitors a day or so ago. They were of considerable bulk and it would take him some time to read and master those files. Directions for the service of evidence by the Plaintiff had not been complied with. With the best efforts, it would not be possible to have the matter ready by 15 June. During the course of that hearing I indicated that there was an absence of any evidence on behalf of the Plaintiff showing why the former solicitor's retainer had been terminated. The matter was adjourned to today so that evidence could be provided. 9. An affidavit was read this morning from the Plaintiff setting out an explanation for that. The Plaintiff has been cross-examined fairly extensively on the affidavit. The Plaintiff indicated in that affidavit how she had come to be instructing the former firm of solicitors. That came about in somewhat unfortunate circumstances where her previous solicitor had been struck off and his files transferred to the former solicitors. 10. She gave evidence of knowledge of certain matters that took place in the proceedings in 2011 and 2012. She said thereafter the solicitors continued to act on her behalf, although she was beginning to feel somewhat uncomfortable about the slow progress of the matter. She said that in September 2014 she was advised her claim had been set down for hearing and that orders were made for the parties to comply with prior to the hearing. She said thereafter in a number of telephone conversations with her former solicitor over the following months she became aware that her solicitor was not complying with the timetable. In answer to a question I asked she indicated that all of those telephone conversations were initiated by her. 11. She said that in early 2015 she had a conference with junior counsel who advised her that preparation for the hearing was lagging behind. She took no action at that stage as she hoped the matter would be properly dealt with by her solicitor. 12. By the end of February or early March her concerns were growing. She recalls a telephone conversation with her solicitor in late February or early March where he said to her, "This litigation has got to the point where it is beyond the capacity of myself or the firm to adequately deal with the matter on your behalf." 13. The Plaintiff advised the solicitor that she would have to seek alternative representation and would be withdrawing her instructions for him to continue to act in the matter. It was in those circumstances that, after phone calls perhaps to two other firms, she managed to retain Mr O'Halloran in early April of 2015. 14. I have also had available on this application to vacate an affidavit from the solicitor for the First Defendant of 2 June 2015. She sets out in some detail the course of proceedings and annexes correspondence. That correspondence discloses, for example, that on 11 February 2015 the Plaintiff's solicitors, who at that stage had not complied with the directions made in September 2014, served a statement of the Plaintiff made on 4 March 2009, probably made to insurance investigators in relation to her workers' compensation claim related to these proceedings. The Plaintiff gave evidence that she did not even provide a copy of that statement to those solicitors. 15. What I infer from the letter of 11 February 2015 from the Plaintiff's former solicitors to Ebsworths (the First Defendant's solicitors) is that the solicitors were making a desperate attempt to comply in some way with the directions that had been made, albeit they were out of time. The Plaintiff said that she had attended a conference or two in order to have a statement taken, presumably pursuant to the directions made in September 2014. No such statement was ever served. 16. On the evidence that I have before me I am satisfied that the fault that this matter is now not ready to proceed on 15 June is not the Plaintiff's fault personally. In saying that I acknowledge that I have not received evidence on behalf of the former solicitors. However, the statement that the Plaintiff alleges her former solicitor made in late February or early March is consistent with the way the matter has proceeded up until that time. 17. The Second Defendant's attitude to this application has been not to consent, nor oppose. Initially the First Defendant opposed the vacation of the hearing and not without good reason. The First Defendant, after having heard from the Plaintiff today, accepted that it would be necessary to vacate the hearing. I am also of that opinion. 18. The real issue in the matter now concerns what costs order ought to be made. The First Defendant seeks that the Plaintiff should pay the costs thrown away by the vacation of the trial, including the costs of this application, on an indemnity basis and that such costs should be payable forthwith. The First Defendant says that the reason for asking for those orders is that the Plaintiff is effectively being allowed a third attempt to have the proceedings heard, that there is a substantial indulgence being given to her by reason of that and that the First Defendant is entitled to be restored to the position it was in in September 2014 when the matter was fixed for hearing and directions were given for its preparation. The Second Defendant adopted the First Defendant's submissions in relation to costs. 19. That Plaintiff's solicitor submitted that there was no fault on the part of the Plaintiff, as demonstrated by her evidence, and that it was not therefore appropriate that indemnity costs should be payable, nor certainly that costs should be payable forthwith. In his submission it would be appropriate for costs to be reserved to the trial. 20. The Plaintiff is being given a considerable indulgence. The proceedings are older than most other proceedings in the court. The Plaintiff is being given an indulgence in again being permitted to get the matter ready for hearing. 21. Although on the evidence before me that is not the Plaintiff's fault personally, the failures by those acting for her are egregious and justify an order that the Plaintiff should pay the costs thrown away and also that those costs should be payable on an indemnity basis. I do not consider, however, that it is appropriate to order that they should be payable forthwith. It may be necessary for there to be some contest at some stage or other so as to sort out who ultimately should bear the costs as between the Plaintiff and her former solicitors. It does not seem to me in accordance with justice that the Plaintiff herself personally should be required to pay those costs forthwith pending the determination of that issue. 22. Although all litigants are equal before the court it must be acknowledged from a practical point of view that the Plaintiff is an individual, the defendants are both substantial corporations and that my refusal of granting a forthwith order will delay the time that those corporations receive the costs that I have held they are undoubtedly entitled to. As a matter of justice I do not think it appropriate to order the Plaintiff to pay them forthwith. 23. The orders that I will make therefore are: 1. The hearing to commence 15 June 2015 is vacated. 2. The Plaintiff is to pave the Defendants' costs thrown away by the vacation of the trial, including the costs of this application, on an indemnity basis as agreed or assessed. ********** 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: 16 June 2015