Cobankara v Australia and New Zealand Banking Group Ltd

The matter before the court involved an application for preliminary discovery under rule 7.23 of the Federal Court Rules 2011 (Cth), where Cobankara sought discovery of certain documents from Australia and New Zealand Banking Group Ltd. The dispute arose from concerns regarding the incorrect sending of credit card statements to individuals with whom Cobankara had a substantial dispute. The legal issues the court needed to decide centred on the exercise of discretion in making costs orders in relation to the preliminary application and the distinction between the costs of the application and the costs of providing discovery. The court had to consider whether the prospective respondent should bear the costs of discovering the documents, especially given that the parties resolved the discovery issues following court-ordered mediation.

The court found a sound basis for distinguishing between the costs of the application and the costs of providing discovery due to the extraordinary nature of the jurisdiction to order preliminary discovery. Since no orders were required for preliminary discovery, and the prospective respondent provided documents outside the usual circumstances, the court saw no justification for the prospective respondent bearing the costs of discovering the documents. The prospective respondent had provided the documents in a way that might have addressed the underlying concerns of the applicants. Consequently, the court concluded that neither party should recover any costs in respect of the submissions provided to the Court, and each party should bear their own costs of those submissions. The court also noted that the parties’ submissions did not canvass all relevant authorities, and the prospective applicants’ submissions did not canvass any of the relevant authorities, while the prospective respondent’s submissions canvassed some but not all of the relevant authorities.

The court made orders for costs in accordance with its reasons. The prospective applicants were granted leave to discontinue the proceeding, finalising the proceeding. The prospective applicants were required to pay the prospective respondent’s reasonable expenses of giving discovery and production of documents. The prospective respondent was to pay fifty per cent of the prospective applicants’ costs of the application for preliminary discovery on a party/party basis, to be taxed in default of agreement. Each party was to bear their own costs of the written submissions filed by the prospective respondent on 20 March 2017 and by the prospective applicants on 22 March 2017.