Riva NSW Pty Limited v Mark A Fraser; Fraser v Riva (NSW) (No. 3)

This judgment deals with directions consequent upon the Court’s last judgment in these proceedings: Riva NSW Pty Ltd v Mark A Fraser (No. 2) [2020] NSWSC 1162. This judgment should be read with the Court’s last judgment. Persons, matters and events are referred to in both judgments the same way.

Since the last judgment, the solicitors, Clancy Lawyers Pty Ltd, have written to the Court on 2 September 2020 pursuant to direction 1(a) of the directions made on 31 August 2020, indicating that the defendant does not seek to rely upon the written costs agreements referred to in Orders 5 – 10 made on 11 February 2020. Clancy Lawyers Pty Ltd have also indicated that they do not seek a different costs order to that proposed in Order 4 made on 31 August 2020.

And Gells Lawyers have also written to the Court on 7 September 2020 indicating that they do seek a different costs order to that proposed in Order 4 on 31 August 2020: namely, that Messrs Fraser and Clancy pay the costs of Riva between 20 December 2019 and 12 March 2020 as agreed or assessed; and Messrs Fraser and Clancy bear the cost of Riva on the motion dated 13 March 2020. Gells Lawyers also seek a directions hearing to assist in reviewing the remaining issues for determination in accordance with the option given by the Court in the last judgment (at [50]).

Following those communications, the Court emailed back to the parties on 8 September 2020 indicating that the Court would attempt to give some directions in writing to attempt to case manage the proceedings, in the following terms:

In response to that email the parties did not provide an agreed set of short minutes. Instead they advanced competing submissions to the Court.

Riva next communicated to the Court relevantly as follows:

In conclusion, Riva cited the decision of the High Court of Australia in Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29 (“Bell Lawyers v Pentelow”) and related decisions.

The solicitors next communicated to the Court relevantly as follows:

The solicitors then characterised Riva’s submission as Riva’s “latest attempt to delay his Honour's decision on costs” and said that they would “object when application made by Riva at this late stage”.

The Court has already commented in its last judgment (at [47] – [49]) that this litigation must be brought to an end. The continuing lack of cooperation between these two parties to achieve that outcome is regrettable. Despite that, the Court will give further directions under Civil Procedure Act, s 61(2)(c) for the following reasons.

The Court will not afford the parties any further opportunities for delay. It has decided that it will not entertain any preliminary issues. The parties must prepare for hearing on the basis that everything now remaining to be determined will be decided on the basis of one final set of written submissions on each side, cross-referenced to a single modestly proportioned agreed bundle of documents containing all the evidence relating to all the remaining issues between them. If that means submissions need to be prepared in the alternative, depending upon the outcome of some issues, then that is how the parties must organise themselves.

The Court’s principal remaining objective is to determine whether indemnity costs are payable in the Riva damages proceedings and the making of a specified gross sum costs order. The subsidiary issues raised are the application of Bell Lawyers v Pentelow to this assessment of costs and the cost issues raised by Gells Lawyers in their letter of 7 September 2020.

With these observations in mind as to what the Court expects, the parties should now attend to the Court’s request in its email of 8 September 2020 for the provision of agreed directions. That request is now a direction. If the parties cannot agree upon directions, they should provide competing directions. But in crafting these orders the parties should remember that they cannot expand the evidence or the issues in these proceedings without the express authorisation of the Court to that course in advance. If the parties wish to put on any further evidence or take any steps other than preparing the Court book and submissions, then the directions that party propose should encompass that possibility for the Court’s consideration.

For these reasons the Court will make the following orders: