Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd
[2016] WASCA 14 (S)
•25 FEBRUARY 2016
KELBUSH PTY LTD -v- AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [2016] WASCA 14 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 14 (S) | |
| THE COURT OF APPEAL (WA) | 25/02/2016 | ||
| Case No: | CACV:68/2015 | 28 JANUARY 2016 | |
| Coram: | MARTIN CJ BUSS JA MITCHELL J | 28/01/16 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs of application for and compliance with orders for preaction discovery Respondent to pay appellant's costs of the appeal | ||
| B | |||
| PDF Version |
| Parties: | KELBUSH PTY LTD AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD |
Catchwords: | Practice and procedure Costs of application for and compliance with orders for preaction discovery Costs of appeal |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KELBUSH PTY LTD -v- AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [2016] WASCA 14 (S) CORAM : MARTIN CJ
- BUSS JA
MITCHELL J
- Appellant
AND
AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : KELBUSH PTY LTD -v- AUSTRALIAN & NEW ZEALAND BANKING GROUP LTD [2015] WASC 117
File No : CIV 2488 of 2014
Catchwords:
Practice and procedure - Costs of application for and compliance with orders for preaction discovery - Costs of appeal
Legislation:
Nil
Result:
Appellant to pay respondent's costs of application for and compliance with orders for preaction discovery
Respondent to pay appellant's costs of the appeal
Category: B
Representation:
Counsel:
Appellant : Mr M L Bennett
Respondent : Mr M F Holler
Solicitors:
Appellant : Bennett + Co
Respondent : Norton Rose Fulbright Australia
Case(s) referred to in judgment(s):
Nil
- MARTIN CJ:
(This judgment was delivered extemporaneously on 28 January 2016 and has been edited from the transcript.)
1 This matter was heard by the court as presently constituted. For the reasons which I now publish the court is unanimously of the opinion that the appellant should be granted leave to appeal, that the appeal should be allowed and that orders should be made for the provision of discovery.
2 Dealing firstly with the costs of the application before the master and the respondent's costs of complying with the orders of discovery, it is my view that, notwithstanding the approach which appears to have emerged in some of the decisions in master's chambers, the proper course in proceedings of this nature is to order, in the absence of any reason to the contrary, that the applicant for the indulgence of pre-trial discovery pay both the respondent's costs of the application and the respondent's reasonable costs of complying with any order for discovery made. Further, it is my view that the obligation to pay costs should not be deferred indefinitely merely because proceedings are subsequently commenced by the applicant against the respondent.
3 However, as a matter of principle, there should be a mechanism by which such an applicant can recoup not only the costs that it is ordered to pay to such a respondent, but also its own costs of the pre-trial discovery application if it commences proceedings against the respondent and it appears to the court responsible for those proceedings that such costs should be ordered to be paid to the applicant. In the present case, the best way of achieving this is to order that, subject to an order enabling recoupment of those costs, the current appellant pay the respondent's reasonable costs of compliance with the order for discovery and also the respondent's costs of the application before the master.
4 The mechanism by which those costs can be recouped would be by way of an order empowering the current appellant to make an application in the course of any subsequent proceedings for orders with respect to not only the costs that it is ordered to pay the respondent today, but also with respect to its own costs of the application before the master.
5 I now turn to the costs of the appeal. In my view, different considerations apply at the level of appeal. Once a decision has been made by the court at first instance, the parties to any subsequent proceedings must assess their own rights and obligations and the error or otherwise of the decision made by the court in the ordinary way. Accordingly, the principle that an applicant for an order of pre-trial discovery should ordinarily pay the respondent's costs has no application beyond the proceedings at first instance.
6 Rather, the parties to an appeal arising from pre-trial discovery proceedings are in the same position as parties to ordinary appellate proceedings generally. In those circumstances, in my view, there is no reason why the costs of the appeal should not follow the event.
8 BUSS JA: I agree with the orders proposed by the Chief Justice and with the reasons he has given for making those orders.
9 MITCHELL J: I also agree with the orders proposed by the Chief Justice for the reasons he has given.
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