Kemp v Tiirikainen (No 2)

[2020] ACTSC 102

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kemp v Tiirikainen (No 2)

Citation:

[2020] ACTSC 102

Hearing Dates:

28 April 2020; 29 April 2020

DecisionDate:

29 April 2020

Before:

Elkaim J

Decision:

See [22]

Catchwords:

CIVIL LAW – APPLICATION – Application for adjournment – late service of affidavit – notice to produce issued – objection taken and affidavit pressed – costs

Cases Cited:

Kemp v Tiirikainen and Sutherland [2018] ACTSC 287

Parties:

Graham Ronald Kemp (Plaintiff)

Mark Martin John Tiirikainen and Ian Alistair Sutherland trading as S&T Lawyers (First Defendant)

Representation:

Counsel

D Hassall with J Pappas (Plaintiff)

M Karam with D Thomas (First Defendant)

Solicitors

Nelson and Hill (Plaintiff)

McInnes Wilson Lawyers (First Defendant)

File Number:

SC 328 of 2018

ELKAIM J:

1. At the commencement of this matter yesterday the plaintiff indicated that he intended to rely on three affidavits. There was his own affidavit affirmed on 31 July 2019, an affidavit of Mr Kuster affirmed on 1 August 2019 and an affidavit of Mr Colquhoun affirmed on 27 April 2020.

1. Subject to objections with which I was able to deal with promptly, the first two of the above affidavits caused no further problem. The third affidavit however, was objected to in its entirety.

1. Mr Colquhoun is the plaintiff’s solicitor. His affidavit is fairly short, but according to the first defendant, includes factual assertions which the first defendant cannot meet. These assertions, said the first defendant, filled in previously existing gaps in the plaintiff’s case on causation. The first defendant continued that the gaps were so obvious and fundamental that it had not thought it necessary to marshal any evidence on the causation issue.

1. Moreover, said the first defendant, the problem would not be solved by cross-examining Mr Colquhoun, because it had no instructions upon which it could base any relevant questions.

1. In addition, the first defendant pointed out that the causation issue had been the subject of a dismissal application brought by the second defendant in August 2018. This was decided by McWilliam As J (Kemp v Tiirikainen and Sutherland [2018] ACTSC 287) on 17 October 2018. Although the application did not succeed it is clear from [25] of her Honour’s reasons that she approached the apparent lacuna on causation on the basis of an apparent absence of particulars. It was pointed out that the particulars subsequently provided did not address the issue.

1. In order to meet the new affidavit the first defendant sent the plaintiff a Notice to Produce certain documents which it thought might provide some background to the assertions made in the affidavit. I therefore allowed the plaintiff the balance of yesterday to locate the documents and provide them to the first defendant, in the hope that the first defendant’s concerns could be met.

1. When the matter recommenced this morning the first defendant informed me that the few documents produced had not assisted and its objection to the affidavit remained.

1. I accept that the first defendant cannot meet the new affidavit. The plaintiff however, and not surprisingly, said the affidavit was vital to his case and he did not wish to proceed without it.

1. This raised the question of what course I should take. Should I compel the plaintiff to proceed without the affidavit, or allow an adjournment to enable the first defendant to meet the affidavit?

1. This matter has a very long and tortured history. It is the more recent history however which is important.

1. On 20 June 2019 the last in a series of directions was made by the Registrar. These directions were made by consent. They included the following:

(a)The plaintiff to file and serve evidence, including expert evidence and affidavit evidence upon which he intends to rely by 1 August 2019.

(b)The first and second defendants to file and serve evidence, including expert evidence, on which they intend to rely by 26 September 2019.

(c)The plaintiff to file any evidence in reply by 3 October 2019.

1. Other directions were made about a mediation. The parties were given liberty to apply to relist the matter for further directions on three days’ notice. I understand that this liberty was never exercised by either party.

1. A mediation occurred but was unsuccessful. On 10 October 2019 the matter was set down for hearing, to commence on 28 April 2020.

1. On 24 April 2020 the plaintiff told the first defendant, or at least hinted, that he intended to serve Mr Colquhoun’s affidavit. It was in fact served yesterday, 27 April 2020.

1. I have not been given any reason for the affidavit being so late. There is a strong inference that the plaintiff has suddenly realised there is a missing link in his case. I do not however reach any conclusion as to whether this is a justifiable inference.

1. As conceded by the plaintiff, the affidavit has been served outside of the above directions and, in effect, at the last possible moment.

1. The first defendant pointed out that the issue was not one of the success or otherwise of its objection to the affidavit. Rather it was for the plaintiff, against the background of the affidavit being served well out of time and contrary to specific directions, to seek leave by a separate application which would include an explanation for the delay.

1. My initial tendency was to proceed with the matter without giving the plaintiff leave to rely on the affidavit. To do so however would be to proceed without allowing the issues between the parties to be fully canvassed.

1. I agree with the first defendant that, strictly speaking, the plaintiff ought to proceed by way of an application for leave to rely on the affidavit. It seems to me however that to follow this course would be not only to add to the delay in the matter being heard but also to the costs that will be incurred. The first defendant agreed with this approach to the extent that it said that the application to rely on the affidavit had effectively been made today.

1. Thus, I think the practical approach that I should take is to give the plaintiff leave to rely on the affidavit and to adjourn the matter to enable the first defendant to take the steps it thinks appropriate to meet the affidavit.

1. As conceded by the plaintiff, he must pay the costs thrown away by the adjournment.

1. Accordingly, I make the following orders:

(a)The plaintiff has leave to rely on the affidavit of Mr Colquhoun affirmed on 27 April 2020.

(b)The matter is adjourned.

(c)The matter is listed for mention before me at 9:30am on 22 May 2020.

(d)The plaintiff is to pay the first defendant’s costs thrown away by the adjournment, those costs are not to be recoverable until the completion of the proceedings.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 29 April 2020