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Guest v Guest (No 2)

Guest v Guest (No 2)

Case [2016] VSC 76 7 March 2016

Discovery & Disclosure

Costs

Supreme Court (General Civil Procedure) Rules 2015, r 32.05, r 32.11

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2014 03995

PETER BENTLEY GUEST	Applicant
v
VERNA ANNE GUEST and PETER JOHN WALSH	Respondents

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions filed 19 February 2016 (without the necessity for a hearing)
DATE OF RULING:	7 March 2016
CASE MAY BE CITED AS:	Guest v Guest (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 76

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DISCOVERY— Pre-action discovery from prospective defendant — Application granted in part — Exercise of discretion on costs of such applications and costs of compliance with discovery order — Whether adversarial rule that costs of application should follow the event — Reasonableness of resistance to application — Adversarial rule not applied —Consideration of the approach of deferring the costs and expenses of compliance with discovery order to any substantive action commenced subsequently — Approach of deferring such costs not followed — Supreme Court (General Civil Procedure) Rules 2015, r 32.05, r 32.11

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APPEARANCES ON THE PRIMARY APPLICATION:	Counsel	Solicitors
For the Plaintiff	Mr R M Garratt QC with Ms A Folie	Hall & Wilcox
For the Defendants	Mr J W S Peters QC with Ms G Coleman	Holding Redlich

HIS HONOUR:

For reasons published on 22 December 2015, the Court decided to grant this application for pre‑trial discovery under rule 32.05 but with a reduction of the amplitude of the documents sought.[1] In an elaborate case where the Court concluded that the applicant had a weak basis for contending at the rule’s threshold that he has or may have the right to relief from the respondents, that outcome nevertheless was a willingness by the Court to order pre-action discovery of documents that by nature appeared to be ‘trust documents’, despite the difficulties of that legal appellation under the law of trusts . In so doing, the Court undertook an examination of the interaction between a beneficiary’s entitlement to documents from a trustee under the substantive law of trusts, and, a beneficiary’s pursuit of documents against a trustee concerning the administration and affairs of a trust under a civil procedural rule such as rule 32.05.
[1][2015] VSC 761.

Now there is a wilful costs dispute, to be determined on written submission which the Court has received.

There are two elements to the question of costs: the costs of the application; and the respondents’ costs and expenses of complying with the discovery order. The respondents seek an order that the applicant pay their costs of the application, and, pay their costs and expenses of compliance with the Court’s orders. The applicant contends the respondents should pay his costs of the application. He accepts he should pay the respondents’ costs of complying with the discovery order unless he commences a substantive proceeding against the respondents within 60 days of the discovery and production of documents as ordered by the Court, in which case those costs form part of the costs of that proceeding. The applicant’s position…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guest v Guest (No 2)

Details

AGLC: Guest v Guest (No 2) [2016] VSC 76
Case: [2016] VSC 76
Decision Date: 7 March 2016

CaseChat Overview and Summary

In the matter of Guest v Guest (No 2), the court was presented with an application for pre-action discovery by the plaintiff, who sought information from the prospective defendant in order to properly assess and prepare their case. The application was heard in the Supreme Court, where the primary focus was on the appropriate exercise of the court's discretion regarding the costs associated with such discovery applications and compliance with any resulting orders.

The legal issues at hand centred on the allocation of costs related to the discovery application and the compliance with any discovery order that might be granted. Specifically, the court needed to determine whether the adversarial rule that costs of an application should follow the event should be applied, and whether the defendant's resistance to the application was reasonable. Additionally, the court considered whether the approach of deferring the costs and expenses of compliance with the discovery order to any substantive action that might be commenced subsequently should be adopted.

The court found that the adversarial rule was not to be applied in this instance, given the unique circumstances of the case. Instead, the court examined the reasonableness of the defendant's resistance to the discovery application. In relation to the costs of compliance with the discovery order, the court decided against deferring such costs to any future substantive action, and instead determined that these costs should be addressed at the time of the discovery application. The court granted the application for pre-action discovery in part, with specific directions regarding the costs associated with the application and compliance with the order.

The court's final orders included a direction that the plaintiff bear their own costs of the application, and that the defendant bear 75% of the plaintiff's costs of compliance with the discovery order. This decision highlights the court's willingness to consider the specific circumstances of each case when exercising its discretion in relation to costs and discovery applications.

Orders