FEDERAL COURT OF AUSTRALIA

Hastwell v Kott Gunning (No 2) [2019] FCA 1046

ORDERS

THE COURT ORDERS THAT:

1.    The time for compliance with order 5 of the orders of Justice Bromwich dated 8 April 2019, previously extended to 5 July 2019 by order 2 of the orders of Justice Jackson dated 30 May 2019, is further extended to 12 July 2019.

2.    The time for compliance with order 6 of the orders of Justice Bromwich dated 8 April 2019, previously extended to 19 July 2019 by order 3 of the orders of Justice Jackson dated 30 May 2019, is further extended to 26 July 2019.

3.    The time for compliance with orders 5, 6, 7 and 8 of the orders of Justice Jackson dated 30 May 2019, is extended to 3 July 2019.

4.    The date for compliance with order 8 of the orders of Justice Bromwich dated 8 April 2019 is extended to 12 July 2019.

5.    The parties provide inspection to each other in accordance with the orders of the Court at the offices of the solicitor for the respondent at midday on 3 July 2019.

6.    The applicant pay the respondent's costs of today's hearing including the respondent's costs of the application made on 21 June 2019 in any event.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    These proceedings involve a claim by the applicant, Mr Hastwell, that the respondent contravened the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth). The details of the claims are not relevant for the purposes of these reasons, which concern an application by the respondent for the costs of a case management hearing held on 2 July 2019 and the costs of the application for directions made on 21 June 2019, which resulted in the case management hearing. The respondent sought those costs as a result of Mr Hastwell's default in compliance with previous directions concerning, in particular, inspection of discovered documents, and on the basis that attendance at the case management hearing was unnecessary. The following reasons were delivered ex tempore at the case management hearing and have been edited from the transcript.

2    At the case management hearing Mr Hastwell frankly admitted that he was in breach of the court's directions made on 30 May 2019. The explanation he gave for the breaches was twofold: first, that there was a death in his family on 6 June 2019; and second, that he had been moving from Sydney back to Perth in order to be able to better manage the conduct of this litigation.

3    I accept that both of those matters may, to some extent, provide an explanation for delay in compliance with the court's orders. However, the difficulty I have with accepting those matters as a basis for refusing the costs orders sought by the respondent is that, on the evidence of the solicitor for the respondent, Mr Heldsinger, provided in his affidavit dated 21 June 2019, no explanation along those lines had been given to the respondents despite numerous attempts to confer and thus obtain those explanations.

4    The further concern that I have about the court being required to hold, and the respondents being required to attend, the case management hearing on 2 July 2019, is that the parties were in agreement about the variations to the directions which needed to be made in order to accommodate the lack of compliance on the part of Mr Hastwell. Nevertheless, Mr Hastwell did not sign a minute of consent orders that the respondent's solicitors submitted to him the day before the hearing, even though at the case management hearing he indicated agreement with the orders set out in the minute.

5    Mr Hastwell indicated to me at the hearing that he had indicated agreement to the minute of consent orders, in an email to the respondent's solicitors which he handed up. It is true that at approximately 2.15 pm on 1 July 2019, after a process of conferral, Mr Hastwell emailed the solicitor for the respondent indicating that he agreed with the orders which the respondent sought, with the exception of order number 5. However order number 5 was an order for the vacation of the case management hearing, and Mr Hastwell did not sign the minute of consent orders that was then sent to him, which included orders in terms of paragraphs 1 to 4 of the orders I made at the case management hearing, and an order that the costs of the respondent's application made 21 June 2019 in respect of his non-compliance be reserved to the interlocutory hearing which is listed for 1 August 2019.

6    In his email of approximately 2.15 pm, Mr Hastwell indicated that the respondent was at liberty to attend the case management hearing on 2 July 2019. With respect, that indicates a fundamental misunderstanding of the processes of this court. It is not for a party to litigation to grant or withhold liberty to any other party to attend a case management hearing, nor is it appropriate for a party to insist upon a case management hearing occurring even though there are no substantive issues between the parties which require a hearing to resolve.

7    There was a potential issue about the venue for inspection of some of the discovered documents, which were to be provided in original form by Mr Hastwell (the rest of the documents having been ordered to be provided electronically). However, that issue quickly evaporated in discussion between the bench and the bar table at the case management hearing.

8    I also acknowledge that Mr Hastwell had been corresponding with the court about certain administrative matters and that on 1 July 2019 officers of the court indicated to him that if he wished to pursue those matters, then he could seek to raise them at the case management hearing. However, that was before the court was informed that the parties were in agreement upon the directions to be made. It did not indicate any acceptance by the court that it was appropriate to persist with a case management hearing when there were no substantive issues concerning the management of the proceedings to be resolved between the parties.

9    Therefore due to Mr Hastwell's default in compliance with previous directions (which he has admitted), his failure to give the respondent's solicitors any explanation for the default prior to the case management hearing, and his insistence, in effect, that the case management hearing proceed when there were no substantive issues between the parties to be determined, I consider that he should pay the costs of the case management hearing on 2 July 2019, including the application that the respondent made on 21 June 2019, in any event.

10    It is important for parties to understand that it is incumbent upon them, as made explicit in s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), to cooperate with each other in order to ensure, among other things, efficient use of the resources of the court. While it appears Mr Hastwell may have had explanations which could have gone at least part of the way towards explaining his non-compliance with the previous directions, he did not advance those explanations to the respondent, despite numerous attempts on the part of the respondent to confer about the non-compliance. It is incumbent upon litigants to communicate with each other in a sensible manner in order to prevent situations such as that which has arisen here, namely an unnecessary attendance by all concerned at a case management hearing.

11    In relation to the quantum of the costs, the respondent has submitted that a lump sum order in the sum of approximately $3,700 should be made. That is on the basis of a calculation of six and a half hours of the solicitor for the respondent's time. I do not consider that I am in a position to determine the quantum today. I also note that the default position under r 40.13 of the Federal Court Rules 2011 (Cth) is that the cost of interlocutory matters should not be taxed until the conclusion of the proceedings. I also note that there is likely to be an application in relation to further discovery which will be heard on 1 August 2019 where the court will deal with costs issues related to the subject matter of the orders made at the hearing on 2 July 2019, as well as costs issues arising from a previous case management hearing, which have been reserved to the hearing on 1 August.

12    For those reasons I ordered that Mr Hastwell pay the respondent's costs of the case management hearing on 2 July 2019, including the respondent's costs of the application made on 21 June 2019, in any event. I made no order about the timing of taxation or the quantum of costs, but I indicated to the parties that, subject to the outcome of the hearing on 1 August 2019 and any costs issues agitated as a result, it will be open to either party to make further application concerning the timing of payment of the costs which were ordered on 2 July 2019 and the quantum of those costs.

Associate:

Dated:    2 July 2019