Minesco Pty Ltd v Orica Australia Pty Ltd

[2002] VSC 102

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6142 of 2000

MINESCO PTY. LTD. AND ANOTHER	Plaintiff
v
ORICA AUSTRALIA PTY. LTD.	Defendant

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JUDGE:	BEACH, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 MARCH 2002
DATE OF JUDGMENT:	26 MARCH 2002
CASE MAY BE CITED AS:	MINESCO PTY. LTD. & ANOR. v. ORICA AUSTRALIA PTY. LTD.
MEDIUM NEUTRAL CITATION:	[2002] VSC 102

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. P. Bingham	Kennedy Guy
For Huntsman Polyurethanes (Australia) Pty. Ltd.	Mr. P. Cosgrave	Minter Ellison

HIS HONOUR:

1. This is the return of a summons issued on behalf of the plaintiffs whereby the plaintiffs seek leave to appeal against paragraph 1 of the order made by Master Kings on 6 March 2002.

1. On 30 November 2001 the plaintiffs filed a summons in the court whereby they sought non-party discovery from a company called Huntsman Polyurethanes (Australia) Pty Ltd (Huntsman).

1. Having dealt with the application - and I should say that by the time the matter came before the Listing Master there was no necessity for an order for non-party discovery being made against Huntsman because by that time it had produced all documentation which was in its possession relevant to the proceeding - the Master made a number of orders in the proceeding, including an order that the plaintiffs pay Huntsman's costs of making the discovery and its costs of the application as such, such costs to be paid on a solicitor/client basis.

1. It is well-established that, in order to obtain leave to appeal in relation to an order for costs, the applicant must establish that the Master's decision is wrong or sufficiently doubtful to warrant reconsideration on appeal.  But not only must such an applicant establish that the decision was wrong, it must establish that substantial injustice would result if the decision was allowed to stand.

1. Authority for those propositions is to be found in Gurnier v. Patterson (1992) 110 F.L.R. 178 at pp.181-2.

1. When the application for leave to appeal commenced this morning, counsel for the applicants informed me that the real problem with the order of Master Kings was that it was unclear from the order itself whether Huntsman was to recover not only the costs of providing documentation to the plaintiff, but also the documentation that it had provided to the defendant which in due course was then passed on to the plaintiff.

1. Counsel also said it was unclear as to whether the costs referred to in the Master's order related to costs incurred prior to the date of the plaintiffs' summons, namely, 30 November 2001.

1. Counsel for Huntsman then informed me that Huntsman made no claim in respect of documents it had supplied to the parties prior to 20 September 2001, but would claim an entitlement to its costs of providing documents to both the plaintiffs and the defendant after that date.

1. As to the costs of providing documents to the defendant after 20 September, such a claim was made on the basis that those documents were supplied to the defendant to enable it to pass them on to the plaintiffs.

1. In my opinion, there is now no ambiguity in relation to the matter.  As I observed on a couple of occasions during the hearing of the application, it will ultimately be for the Taxing Master to determine whether those items sought to be claimed by Huntsman after 20 September are appropriate.

1. When the Master made the order in relation to the costs of non-party discovery that she did, she delivered reasons for her decision in that regard, which reasons appear as document 67 on the court file.

1. I have examined those reasons and I am not persuaded that the Master made any error in the matter.  The question of the appropriate order to make as to the costs of providing the discovery by Huntsman and the costs of the actual application itself were matters entirely within the discretion of the Master.  Having read the Master's reasons for judgment, I am of the opinion that she took into account those matters she was required to and made no error in the matter.

1. But even if she had made any error, the fact is that, in the long run, the plaintiff should suffer no injustice as a consequence.  I say that for this reason; by paragraph 2 of her order, the Master ordered that the costs paid by the plaintiffs be costs in the proceeding.  It follows, therefore, that, if the plaintiffs are ultimately successful in their claim against the defendant, the defendant will be required to pay the plaintiffs' costs of the proceeding, including the costs that the plaintiffs are required to pay to Huntsman pursuant to the Master's order.

1. The application for leave to appeal therefore will be refused.  I order that the plaintiffs pay the costs of Huntsman Polyurethanes (Australia) Pty Ltd of the appeal.

(Discussion ensued.)

1. I do not propose to make an order for solicitor/client costs.

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