Bendigo and Adelaide Bank Limited v Stamatis

In my principal Reasons for Judgment in this matter, delivered on 16 September 2014, I expressed disquiet at what seemed to me to be an unduly large quantity of paper, much consisting of unnecessary duplication, generated in the course of the litigation between the Plaintiff and Defendants.

In Reasons delivered on 12 June 2015, I concluded that orders should be made calculated to make Gadens, the solicitors for the Plaintiff, liable for the consequential unnecessary costs. In paragraphs 116-119 of those Reasons I expressed a tentative form of the orders that seemed to me appropriate.

On 18 June 2015, Gadens advanced for my consideration some Short Minutes of Order which, albeit with some changes, were suggested to reflect the relief I had foreshadowed. On that day, I made orders 1 and 3 in those Short Minutes and adjourned the proceedings until 20 August last.

On 14 August 2015, Gadens forwarded to my Associate a Bill of Costs, a summary of the Bill and further draft Short Minutes of Order and during a hearing on 20 August 2015 which has led to these Reasons, copies of these became Exhibits F and G.

Consideration of those further Short Minutes and the Bill of Costs has led me to the view that the Short Minutes are not appropriate and that my tentative form of orders was not sufficient to reflect the reasoning that inspired them. I should explain why.

The principal sources of the unnecessary paper were three affidavits and documents exhibited to them, the affidavits being that of Vanessa Magee of 9 July 2013, that of Jane Gurney of 9 July 2013, and that of Candece Nicholls of 12 July 2013 (sometimes referred to as of 9 July 2013). I summarised my conclusions concerning these:-

My Reasons of 12 June 2015 also included the following:

Apart from oral evidence, the proceedings between the Plaintiff and Defendants were conducted principally upon the contents of a 5 volume, 1998 page, Court Book which had been directed and in which were contained copies of the Affidavits filed in the proceedings including those to which I took exception. In part the orders I proposed were formulated by reference to the Court Book and not by reference to the Affidavits themselves. Included in the orders I suggested were:

Paragraphs 1 and 3 of the Short Minutes of Order of 18 June 2015, directed Gadens to provide a Bill of Costs and included an order calculated to deal comprehensively with the situation of Messrs Hughes and Taylor, the solicitors for the Defendants. Otherwise the matter was adjourned until 20 August 2015. The draft Short Minutes of Order forwarded by Gadens on 14 August 2015 were directed to the balance of the matters referred to in the immediately preceding paragraph and was in terms:

There are a number of problems with these proposed Short Minutes. The Summary of the Bill of Costs which is said to identify the costs of “preparation and copying of and incidental to the affidavits of Vanessa Magee, Jayne Gurney and Candece Nicholls” and by reference to which the figures in the proposed Short Minutes were calculated:-

The above list is not intended to be exhaustive. It does however provide a reason why I am not prepared to accept the quantification advanced in the suggested Short Minutes. (I should add some explanation of the reference to “exhibit of Jayne Gurney JG1” in the immediately preceding paragraph. Exhibit JG1 was an exhibit to Ms Gurney’s affidavit filed on 1 February 2012. It seems unlikely that the exhibit was being collated in July 2013.)

Furthermore, during the hearing on 20 August I expressed surprise that the figure in paragraph (d)(ii) of the Short Minutes of Order should be “Nil”. Ms Magee, appearing for Gadens responded, inter alia, as follows:

(The above passages are taken verbatim from the transcript. I am not conscious that any of them are inaccurate save that my impression is that the word “not” should have appeared in that part of the first passage quoted as reads: “Counsel have responded and said the inclusion of any material in the Court Book would have increased any preparation time.”)

The Bill of Costs contains references to counsels’ fees. The hearing of the principal proceedings commenced on 24 March 2014. Senior Counsel for the Bank charged for 72.75 hours of preparation in the period 3 to 23 March. The Bill does not detail the hours spent by junior counsel but it is clear that he spend some days during this period engaged in preparation.

The Court Book of 1998 pages contained copies of the pleadings, the affidavits filed by the parties, a joint report by handwriting experts, and some 40 pages of Notices to Admit, Notices disputing, objections to evidence and submissions. An item in the Bill of Costs says that the Court Book was delivered to counsel on 14 March 2014. When Senior Counsel for the Plaintiff opened the case and began to read affidavits, he did so by reference to copies in the Court Book. Thereafter all or virtually all references to affidavits or copies of affidavits were to those contained in the Court Book.

Particularly when one has regard also to the state of orderliness inherent in the Court Book it is impossible to accept that no part of the time counsel spent in preparation was attributable to the Court Book even though it may well be that a deal of counsel’s preparation was effected by directing attention to copies, not contained in the Court Book, of the various affidavits or documents. Recognition of this possibility, combined with the suggestion inherent in the inclusion of “Nil” in paragraph 1(d)(ii) of the proposed Short Minutes, makes it apparent that my tentative suggestion as to the form of order calculated to impose on Gadens the costs wasted by the unnecessary paper was not adequate.

Both consideration of the affidavits (and the documents exhibited to them) and reflection on the time I spent in the course of preparation of my principal reasons wading through the very substantial quantity of duplicated material leaves me in no doubt that that duplicated material – equivalent to about one third of the pages in the Court Book - must have added significantly to the costs of preparation of the case and, probably to a lesser extent, to the costs of the hearing. In the circumstances, and having regard to the suggestion that the Court Books added nothing to counsels’ costs of preparation, I propose to vary the form of order I had proposed in paragraph 1(d)(ii) to that set out below. The “three times” reference is derived as an approximation of the unnecessary length of those affidavits (including documents exhibited or annexed) and roughly reflects the contents of paragraph 97 of my Reasons of 12 June last.

Given what seem to be errors in Gadens’ quantification of the “costs of and incidental to the preparation, drafting and settling (whether by Gadens or counsel), and copying by or on behalf of Gadens (otherwise than as an incident of the preparation or use of the Court Book) of the affidavits of” Vanessa Magee, Jayne Gurney and Candece Nicholls, I also propose to refer the issue of that quantification to a costs assessor. I have also, more fully than in the tentative version of the orders, identified those affidavits.

I am not unconscious of Ms Magee’s submission that widening the scope of the orders I had proposed would be inherently unfair. I do not agree. Reasons delivered previously made it abundantly clear what I was seeking to achieve and why and so long as my orders do not have the effect of going beyond those considerations, there is no unfairness. A fortiori is this so when the tentative orders I suggested were prefaced by the words, “Subject to any matter that may arise in the interim”.

Following the orders of 12 June 2015 I had my Associate contact a number of costs assessors whose name had been provided by the Costs Assessment Registrar. The names of all who were available were provided and Gadens indicated they had not objection to any of them. Some of the replies contained qualifications or possible complications and in the result I propose to appoint Mr John Bartos of 180 Phillip St, Sydney as the costs assessor.

Against the possibility of further difficulties I have also decided to defer, until the report of the Assessor is received, final orders against Gadens. As presently advised and apart from specifying dollar amounts, I see no reason why, subject to some change incorporated in order (d)(ii) below, those orders should differ in their effect from those previously indicated, viz:-

To achieve the result adverted to in the immediately preceding paragraph, and in order to ensure that the matter is not overlooked, I will stand the proceedings over until a date about 2 months hence in anticipation that the assessor’s report will be available prior to that time. Should complications occur in respect of dates, any interested parties should feel free to approach my Associate and I will feel free to have her contact them.

Accordingly, the orders I make are:-