Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd (No 2)

Fredon Infrastructure Pty Ltd, the plaintiff, sued Hitachi Rail GTS Australia Pty Ltd, the defendant, in the Federal Court of Australia over a dispute related to the construction of a railway project. The plaintiff sought documents from the defendant under a Notice to Produce. The defendant objected and applied to set aside the Notice to Produce. The plaintiff opposed the application. The defendant later consented to an order that the costs of the motion to set aside the Notice to Produce be costs in the cause. The plaintiff was granted judgment and the defendant was ordered to produce the documents. The defendant then sought its costs in respect of the documents produced in answer to the Notice to Produce, arguing it was entitled to its costs under the general rule that costs follow the event.

The court had to decide whether the defendant was entitled to its costs in respect of the documents produced. The court noted that the defendant had earlier consented to an order that the costs of its motion seeking to set aside the Notice to Produce be costs in the cause. The court held that the defendant was not entitled to its costs in respect of the documents produced. The court reasoned that the defendant had failed to establish a basis upon which the court could exercise its discretion in favour of an order for costs. The court held that the defendant's costs in producing the documents should be borne by the plaintiff as the prevailing party. The court declined to make the costs order sought by the defendant.

The court dismissed the defendant's application for costs and ordered the defendant to pay the plaintiff's costs of the proceeding. The court held that the defendant was not entitled to its costs in respect of the documents produced and that the plaintiff was entitled to its costs as the prevailing party. The court held that the defendant's costs in producing the documents should be borne by the plaintiff as the prevailing party. The court ordered the defendant to pay the plaintiff's costs of the proceeding, including the costs of the application for costs.