Agus Irawan v AWB Ltd (No 2)
[2001] VSC 399
•19 October 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 7877 of 2000
| AGUS IRAWAN | Plaintiff |
| v | |
| AWB LIMITED and AWB (International) Limited | Defendant |
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JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 19 September 2001 | |
DATE OF JUDGMENT: | 19 October 2001 | |
CASE MAY BE CITED AS: | Agus Irawan v AWB Ltd and Anor (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 399 | |
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Costs
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Ian Waller | Clayton Utz |
| For the Defendant | Mr W. Martin QC with Mr R. McIness | O’Donnell, Frampton Salzano |
HONOUR:
On 11 October 2001 I delivered my judgment and made orders in these proceedings. The proceedings were commenced by Originating Motion filed on behalf of the plaintiff on 4 December 2000. By the Originating Motion and Summons thereon the plaintiff sought pursuant to Rule 32.05 of Chapter 1 of the Court that the defendant make discovery to him of the documents identified by subject matter in these proceedings.
On 18 December 2000 it was ordered by a Master that the plaintiff have leave to amend his Originating Motion and Summons to seek in the alternative to the order sought or in addition to an order for discovery against the defendants of the nature and form, which is commonly referred to as a "Norwich Order" for discovery.
By my judgment delivered on 11 October 2001 and the orders made that day I ordered pursuant to Rule 32.05 that the defendants give to the plaintiff discovery and inspection of documents of the nature sought by the plaintiff but that in first instance the affidavit of discovery be furnished to the solicitor for the plaintiff and that inspection of the documents discovered be limited to inspection by the plaintiff's solicitors and counsel. The reasons for so limiting such discovery and inspection of the documents at first instance is dealt with in my judgment. For the reasons set out in my judgment I declined to make a "Norwich Order" for discovery.
On 11 October 2001 I ordered that the plaintiff pay the defendants' reasonable costs of giving discovery and making provision for inspection of the documents discovered and providing copies of any document discovered to counsel or the solicitors for the plaintiff. Such orders as to those costs were made pursuant to Rule 32.11(1).
On 11 October 2001 the plaintiff sought an order that the defendants pay his costs of these proceedings. That application was resisted on behalf of the defendants. I have now had the opportunity of reading submissions of counsel for the plaintiff and counsel for the defendants relevant to the question of such costs. By his submissions, counsel for the defendants has sought an order that the plaintiff pay the defendants' costs of the proceedings. He has also submitted that in the event of such an order not being made no order should be made as to the costs of the proceedings.
The orders sought by the plaintiff and the defendants for costs of the proceedings are to be considered separately and apart from the costs previously ordered. Pursuant to s.24(1) of the Supreme Court Act 1986 it is provided:
"Unless otherwise expressly provided by this or any other Act or by the rules, the costs of and incidental to all matters in the court, including the administration of estates and trusts, is in the discretion of the court and the court has full power to determine by whom and to what extent the costs are to be paid."
Pursuant to Rule 32.11(1) it is provided in part that on an application under Order 32, "the Court may make an order for costs and expenses of the application of the person against whom the order is made or sought and any other party to the proceedings."
Pursuant to s.24(1) of the Supreme Court Act and Rule 32.11 there is vested in the court a wide discretion as to costs of the nature now sought by each of the parties. Such discretion must be exercised judicially by the Court.
On behalf of the plaintiff counsel has submitted that it was necessary for the plaintiff to bring the proceedings because although the plaintiff, before the issue of the proceedings, sought, from the defendants, discovery of documents now ordered to be given, the defendants declined to give discovery and inspection of such documents. It has further been submitted on behalf of the plaintiff that although the plaintiff was not successful in obtaining an order for discovery in the nature of a "Norwich Order", the plaintiff has been successful in the proceedings and ought to have his costs against the defendants.
On behalf of the defendants it has been submitted that a good deal of the costs incurred by the defendants are relevant to the "Norwich Order" for discovery sought by the plaintiff and that also time was taken up at trial with regard to this matter in respect of which the defendants were ultimately successful. Further, it has been submitted that by my judgment and orders made, the confidentiality of the defendants' documents has at this time been preserved which is a matter on which the defendants have been successful. It has been submitted on behalf of the defendants that when regard is had to these matters it should be ordered that the plaintiff pay their costs or alternatively that no order should be made as to the costs of these proceedings.
In Conrock Ltd v. CSR Ltd[1] application was made under Order 15A Rule 8 of the Federal Court Rules (which are in the same terms as Rule 32.07 of the Rules of this Court) against companies which were not parties to the proceedings seeking discovery of documents of the nature identified. The third party companies Boral Resources (Qld) Pty Ltd and Pioneer Concrete (Qld) Pty Ltd resisted the application on the grounds that the material sought was "confidential" and concerned "highly confidential material." Pinkus J. ordered that the third parties give discovery to the applicant. He ordered that until further order inspection of the documents to be discovered was to be limited to the applicant's solicitor and counsel who were not permitted until further order to reveal the contents of such documents to any person. An undertaking was given by the managing director of the applicant to consent to an order that he pay the costs found by the court to be reasonable costs and expenses incurred by the third party companies in retrieving, listing and supplying the documents to be discovered. No order was made as to costs of those proceedings.
[1] (1990) 96 A.L.R. 690
In his judgment Pinkus J said at 694:
"Order 15A r.11 gives the court a discretion as to the costs and expenses of the applicant Conrock and likewise those of Boral and Pioneer. Subject to what counsel may say I am inclined not to allow Conrock any costs against Boral and Pioneer although the application was successful and although it is, I think, true that much of the difficulty in dealing with this matter has been occasioned by the complete lack of co-operation of Boral and Pioneer."
In Russell Kumur & Sons Pty Ltd v. Bienstein[2], the plaintiff, pursuant to Rule 32.07 sought non-party discovery from the liquidator of a company of which the three defendants were directors. On the hearing of the application the liquidator chose to say nothing. The application however was opposed by the defendant directors of the company.
[2] (Murphy J. 12786/90 : 2 August 1991, unreported)
Murphy J heard counsel on behalf of the defendants as to why the orders sought should not be made. His Honour was satisfied that the documents which the plaintiff sought to inspect were relevant to the action brought by the plaintiffs against the three directors and ordered the liquidator to make discovery of the documents identified in his order.
His Honour ordered that the liquidators costs of retrieving the documents and making discovery of them, at first instance, be paid by the plaintiffs and that such costs as between the parties be costs in the cause. He further ordered the defendants to pay the costs of the liquidator and the plaintiff of the summons.
These two judgments are examples of the exercise of the wide discretion as to costs in proceedings of this nature.
Although the defendant successfully resisted the application for discovery in the form of the "Norwich Order" the plaintiff was otherwise successful in these proceedings. In my view this is not the type of proceeding in which an exercise should be performed or undertaken to seek to assess the amount or proportion of costs or time spent on that aspect of the proceedings on which the defendants successfully resisted the application of the plaintiff. In the result the plaintiff was successful in his application although at first instance inspection of the documents to be discovered is to be limited to an inspection made by his solicitors and/or counsel. It was the defendants' resistance to give discovery to the plaintiff of the documents sought pursuant to Rule 32.05 which necessitated the plaintiff initiating and prosecuting these proceedings. Although in consequence of the order made which initially limits inspection of the documents discovered by the defendants to the plaintiff's solicitor and/or counsel which should prevent discovery by the defendant of the documents being used for the purpose other than that provided by Rule 32.05 and which should also at this time preserve confidentiality of the documents, the plaintiff has nevertheless been successful in his application. In my view, the fact that at this time inspection of the documents is limited in the manner ordered by me should not deprive the plaintiff of obtaining his costs of the proceedings nor should it limit the costs recovered by him.
In my view when regard is had to the nature of the proceedings the conduct of the same and the outcome as evidenced by the orders made by me there is no good reason why costs should not follow the event. In my view there exists no good reason why the defendants should have their costs of the proceedings against the plaintiff. The defendants resisted the application of the plaintiff but they were not successful in that resistance. I am also satisfied that in these proceedings it is not appropriate that no order for costs should be made.
The conclusion that I have reached is that the plaintiff should have his costs of the proceedings including reserve costs against the defendants.
Accordingly, it is ordered that the defendants pay the plaintiff's costs to the proceedings including reserve costs, and I so order.
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