IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION
GENERAL LIST	Revised
Not Restricted
Suitable for Publication	
Case No. CI-21-03895

Scott Munro	Plaintiff	
		
v		
		
Peninsula Health	Defendant	

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JUDGE:	His Honour Judge Pillay	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19, 20, 21 and 24 July 2023	
DATE OF RULING:	24 August 2023	
CASE MAY BE CITED AS:	Munro v Peninsula Health (Ruling)	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1463		

RULING
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Subject:	Costs application
Catchwords: 	Costs – Application for indemnity costs – Where defendant failed to disclose the existence of relevant documents – Where defendant made late discovery
Legislation Cited:	Civil Procedure Act 2010 (Vic)
	County Court Civil Procedure Rules 2018 (Vic)
Cases Cited:	Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666
	National Australia Bank Ltd v Petit-Breuilh (No 2) [1999] VSC 395
	Ugly Tribe Company Pty Ltd v Mario Sikola [2001] VSC 189
	Yara Australia Pty Ltd v Oswal (2013) 41 VR 302
Ruling:	The plaintiff is awarded costs for a total of four days on an indemnity basis

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A D B Ingram KC with
Mr P Haddad	Redlich’s Work Injury Lawyers	
			
For the Defendant	Mr S Smith KC with
Ms C Wilshire	Wisewould Mahony	

HIS HONOUR:

1	This matter came before me for trial in July 2023. It concerned a claim that the plaintiff had sustained an injury to his neck when turning bariatric patients at Frankston Hospital, which was operated by the defendant. The plaintiff alleged the defendant was negligent in failing to provide a safe system of work for bariatric turns. 
2	The trial commenced on Wednesday, 19 July 2023. The jury was discharged and matter adjourned on the fourth day of trial, Monday, 24 July 2023, as the defendant made late discovery of documents. The defendant has conceded that a costs order should be made against it on a standard basis for two days on the 21st July and 24th July 2023. The plaintiff submits that an order should be made for costs on an indemnity basis for preparation, conferences and appearances, said to constitute six days in total. I must therefore decide on two issues. The first is whether indemnity costs should be awarded in this case. The second is the number of days the defendant must pay the plaintiff’s costs.
Should indemnity costs be awarded?
3	The plaintiff claims the defendant should pay indemnity costs due to a failure to disclose the existence of relevant documents in line with the overarching obligations, specifically s26 of the Civil Procedure Act 2010, as well as discovery requirements in reg 29.01.1 of the County Court Civil Procedure Rules 2018. 
4	In Bolitho v Banksia Securities Ltd (No 18) (remitter), John Dixon J stated that:
The usual order is that costs are awarded to the successful party and assessed on a standard basis, unless there is some special or unusual feature justifying a departure from that rule. This principle is well established and is explained in the cases frequently cited in this jurisdiction when the question of an assessment on an indemnity basis arises.
When that question arose in the context of breaches of overarching obligations under the Civil Procedure Act, the Court of Appeal in Yara Australia Pty Ltd v Oswal observed:
The breach of the overarching obligation under the Act is a matter that may be taken into account in making an order for costs. There will be cases where a breach of an obligation under the Act may support an order for indemnity costs. The breach may well reflect an already well recognised basis for the making of such a costs order. We do not need to consider whether there may be contraventions which give rise to any new basis for the making of such orders.
It is appropriate to order that costs be assessed on an indemnity basis where the party paying costs has engaged in unmeritorious or deliberately improper conduct that would warrant the court both showing its disapproval and, at the same time, preventing the winning party from being left out of pocket. Late discovery of documents without proper explanation may also amount to misconduct in litigation that justifies indemnity costs. (my emphasis)
5	In Ugly Tribe Company Pty Ltd v Mario Sikola (‘Ugly Tribe’), Harper J provided a non-exhaustive list of special circumstances which would justify the awarding of indemnity costs. These included, most relevantly: 
‘The failure, after the commencement of the trial and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial.’
6	Both Bolitho and Ugly Tribe rely upon National Australia Bank Ltd v Petit-Breuilh (No 2) (‘Petit-Breuilh’). There are parallels between that case and the current matter in that the party that failed to make full discovery, here the defendant, ‘would have been no stranger to litigation’. Further, the late discovered material was highly relevant. For example, the significant volume of documents discovered late include minutes of meetings of the Bariatric Action Group prior to the plaintiff’s injury, which disclosed discussion of the issue of safety in dealing with bariatric patients. This is the central issue in the plaintiff’s case.
7	The defendant submits that this case should be distinguished from Petit-Breuilh as it has provided an explanation, in that its actions should be described as ‘inadvertence’ and it is too early to understand the effect of these further discoverable documents on the outcome of the case.
8	This echoes the reasons provided in Court. I consider that whatever explanations that have been provided to date have been brief and vague.  Regarding the defendant’s description of their actions as ‘inadvertence’, I note the Court’s comments in Petit-Breuilh, in which indemnity costs were awarded against the plaintiff, that:
‘I would impute to the bank and to those advising it no more than incompetence in the preparation of its case. But it is not for the defendants to bear the burden of that incompetence’.
9	This suggests ‘inadvertence’ is not a reason why indemnity costs should not be awarded. I similarly consider it is not for the plaintiff in this case to bear the costs. While I accept it is speculative as to whether the matter will proceed now that further discovery has been made, I nonetheless find this to be a ‘special circumstance’ in which indemnity costs are warranted.
How many days should the plaintiff receive costs for?
10	The defendant has conceded it cannot resist the plaintiff’s application for costs for the last two days of trial, being 21 and 24 July 2023. I agree. This leaves the question of preparation and conferencing on 16 and 17 July 2023 and trial on 19 and 20 July 2023.
11	I do not accept the plaintiff’s time has been completely thrown away in preparation for the vacated trial. Indeed, I consider that the majority of it will be relevant should the matter resume, particularly given I have relisted this matter in only four weeks to commence on 28 August 2023, with a mediation to occur prior to that. Nonetheless, in the event the matter again proceeds to trial, the plaintiff may need to make significant changes to its approach and address to the jury. Undoubtedly, the expert and potentially some lay witnesses will need to be re-conferenced. I therefore consider the plaintiff should be awarded one day of preparation thrown away.
12	On 19 July 2023, in preliminary matters, the defendant raised issue with the admissibility of an expert report by Ms Louise O’Shea (‘Ms O’Shea’), relied upon by the plaintiff. It was open to the defendant to do so. However, the defendant produced a series of undiscovered emails relating to the defendant’s retention of Ms O’Shea to undertake a review of its bariatric procedures, and the issue of discovery became the subject of significant argument in the afternoon. Argument was then had over the admissibility of Ms O’Shea’s report. I reserved my ruling on the admissibility of the report. On the morning of 20 July 2023, the defendant produced further documents and discovery was again canvassed. As it had the previous day, the defendant assured the Court all documents had been produced.  A jury was then empanelled and court resumed in the afternoon, at which time plaintiff’s counsel began his opening address. The jury was then discharged due to argument over the plaintiff’s pleadings unrelated to the discovery issue. The plaintiff ultimately conceded an amended pleading was necessary and this was duly produced the next day. At the time, the unresolved discovery issue led to adjournment for the rest of the day.
13	Having regard to the course of proceedings, I find that the plaintiff should be awarded costs for one day out of the 19th and 20th July 2023. 
14	Therefore, the plaintiff is awarded costs for a total of four days on an indemnity basis, being one day of preparation and three days of trial.