Gold Coast Marine Aquaculture Pty Ltd v HTC Trading Pty Ltd

Gold Coast Marine Aquaculture Pty Ltd applied for an order for preliminary discovery against HTC Trading Pty Ltd and two other parties. The primary dispute centred on whether HTC Trading Pty Ltd had acted negligently, causing loss to Gold Coast Marine Aquaculture Pty Ltd. The case was heard in the Federal Court of Australia. The legal issues that the court had to decide included whether Gold Coast Marine Aquaculture Pty Ltd should be awarded costs for its substantially successful application for preliminary discovery, and whether HTC Trading Pty Ltd's opposition to the application was reasonable and justifiable.

In reaching its decision, the court considered the case of Pfizer Ireland Pharmaceuticals Pty Ltd v Samsung Bioepis AU Pty Ltd (No 2) [2019] FCA 657, which set out the principles for awarding costs in such circumstances. The court found that while HTC Trading Pty Ltd's opposition was robust, it was not unreasonable or vexatious. The court noted that the categories of documents sought in the application had been significantly narrowed, and HTC Trading Pty Ltd had voluntarily provided some documents. The court also found that the Department's opposition was reasonable, given the confidentiality of the material in its possession. The court ultimately decided that Gold Coast Marine Aquaculture Pty Ltd should be awarded its costs if a proceeding was commenced against the prospective respondents within three months of the date of the order. If no proceeding was commenced, then the prospective respondents would be entitled to half of their costs of and incidental to the application.

The court made orders that the costs of the applicant and of the first and fourth prospective respondents of and incidental to the preliminary discovery application be that party's costs in the cause in any proceeding commenced by the applicant against the prospective respondents concerning claims the subject of the preliminary discovery application. If a proceeding against each of the first and fourth prospective respondents concerning claims the subject of the preliminary discovery application is not commenced by the applicant within three months of the date of this order, or such further period as the Court allows, the prospective respondent against whom no proceeding is commenced shall be entitled to half of its costs of and incidental to the application, to be agreed or in default of agreement to be assessed.