Integrated Medical Technology Pty Ltd v Gilbert (No 3) - [2015] QSC 133

SUPREME COURT OF QUEENSLAND

CITATION:

Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 3) [2015] QSC 133

PARTIES:

INTEGRATED MEDICAL TECHNOLOGY PTY LTD
(First Plaintiff)
INTEGRATED MEDICAL SYSTEMS PTY LTD
(Second Plaintiff)
v
SHANE ROSS GILBERT
(First Defendant)
JJS TECHNOLOGIES PTY LTD
(Second Defendant)
BUNDABERG RADIOLOGY PTY LTD
(Third Defendant)
JOHN MITCHELL
(Fourth Defendant)
JASON WILDEN
(Fifth Defendant)
BAYSIDE RADIOLOGY PTY LTD
(Sixth Defendant)
BOLSOVER RADIOLOGY PTY LTD
(Seventh Defendant)
BEACHSIDE RADIOLOGY PTY LTD
(Eighth Defendant)

FILE NO/S:

BS161 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application for Costs

DELIVERED ON:

11 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. The costs of the application filed on 4 December 2014 are costs in the proceeding.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – where the plaintiffs applied for an order that the defendants pay the costs of an application for further disclosure of material – where the defendant applied for an order that costs be awarded on the basis of success on issues on the application – whether the court should order costs on the basis of either parties’ arguments

Uniform Civil Procedure Rules 1999 (Qld), r 5

Integrated Medical Technology Pty Ltd and Anor v Gilbert & Ors (No 2) [2015] QSC 124, related

COUNSEL:

Written submissions of P O’Higgins for the plaintiffs
Written submissions of A Harding for the defendants

SOLICITORS:

McCullough Robertson Lawyers for the plaintiffs
M + K Lawyers for the defendants

Jackson J: This is the decision on the application for costs of the application decided in Integrated Medical Technology Pty Ltd and Anor v Gilbert & Ors (No 2) [2015] QSC 124.

The plaintiffs apply for an order that the defendants pay the plaintiffs’ costs of the application.

The defendants apply for an order that the costs of the issues decided by the orders made in paragraphs 1 and 2 of the principal judgment, described as the application for an order for further disclosure, be decided so that the plaintiffs pay the defendants’ costs of the issues on which the defendants succeeded and accept that the plaintiffs should pay the costs of the issues on which the plaintiffs succeeded on this part of the application. Further, the defendants apply for an order that the costs of the application relating to order 3, described as the application to vary the confidentiality regime, be made costs in the proceeding.

For the reasons that follow, in my view, the order that should be made is that the costs of the application, overall, are costs in the proceeding.

Extent of the plaintiffs’ success

The plaintiffs submit that they were almost entirely successful upon the application to vary the confidentiality regime. They submit that they also achieved significant success on the application for an order for further disclosure. In both respects, there is scope for argument about the extent of the plaintiffs’ success. I do…

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.

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Details

Case: [2015] QSC 133
Decision Date: 11 November 2015

CaseChat Overview and Summary

The case involved Integrated Medical Technology Pty Ltd as the plaintiff and Gilbert as the defendant. The matter was before the court to address an application for an order that the defendants pay the costs of an application for further disclosure of material. The plaintiff sought the order after the defendant had applied for an order that costs be awarded based on success on issues in the application. The legal issues that needed to be resolved concerned the principles governing costs orders in the context of applications for further disclosure, and whether the court should order costs based on the arguments presented by either party.

The court considered the principles that guide costs orders in relation to applications for further disclosure. It recognised that the general rule is that each party bears their own costs unless the court orders otherwise. However, the court also noted that there are exceptional circumstances where it may be appropriate to order costs based on the arguments made by either party. The court examined the arguments of both parties, noting that the plaintiff’s application for further disclosure was largely successful, while the defendant’s application was largely unsuccessful. Despite this, the court found that the defendant's arguments had some merit and were not entirely without substance, which influenced the costs order.

The court concluded that while the plaintiff had largely succeeded in their application for further disclosure, the defendant’s arguments, although ultimately unsuccessful, had some reasonable basis. Therefore, the court decided to order that the costs of the application filed on 4 December 2014 be costs in the proceeding. This approach balanced the success of the plaintiff's application with the non-frivolous nature of the defendant’s arguments.

The final order of the court was that the costs of the application filed on 4 December 2014 would be costs in the proceeding. This decision reflects a careful consideration of the principles of costs in applications for further disclosure and the particular circumstances of the case.

Orders

Orders of the court

The order of the court is that:

1. The costs of the application filed on 4 December 2014 are costs in the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 3) [2015] QSC 133
PARTIES:	INTEGRATED MEDICAL TECHNOLOGY PTY LTD (First Plaintiff) INTEGRATED MEDICAL SYSTEMS PTY LTD (Second Plaintiff) v SHANE ROSS GILBERT (First Defendant) JJS TECHNOLOGIES PTY LTD (Second Defendant) BUNDABERG RADIOLOGY PTY LTD (Third Defendant) JOHN MITCHELL (Fourth Defendant) JASON WILDEN (Fifth Defendant) BAYSIDE RADIOLOGY PTY LTD (Sixth Defendant) BOLSOVER RADIOLOGY PTY LTD (Seventh Defendant) BEACHSIDE RADIOLOGY PTY LTD (Eighth Defendant)
FILE NO/S:	BS161 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application for Costs
DELIVERED ON:	11 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The costs of the application filed on 4 December 2014 are costs in the proceeding.
CATCHWORDS:	PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – where the plaintiffs applied for an order that the defendants pay the costs of an application for further disclosure of material – where the defendant applied for an order that costs be awarded on the basis of success on issues on the application – whether the court should order costs on the basis of either parties’ arguments Uniform Civil Procedure Rules 1999 (Qld), r 5 Integrated Medical Technology Pty Ltd and Anor v Gilbert & Ors (No 2) [2015] QSC 124, related
COUNSEL:	Written submissions of P O’Higgins for the plaintiffs Written submissions of A Harding for the defendants
SOLICITORS:	McCullough Robertson Lawyers for the plaintiffs M + K Lawyers for the defendants