Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health (No 2)

Case [2023] NSWSC 1417

Supreme Court


New South Wales

Medium Neutral Citation: Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health (No 2) [2023] NSWSC 1417
Hearing dates: On the papers; submissions received 15 and 17 November 2023
Date of orders: 21 November 2023
Decision date: 21 November 2023
Jurisdiction:Equity - Commercial List
Before: Stevenson J
Decision:

Plaintiff to pay the defendants’ costs of the application for a separate question

Catchwords:

COSTS – party/party – unsuccessful application for separate question – whether costs should follow the event

Legislation Cited:

Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW)

Cases Cited:

Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580

Gordon v Winning Appliances Pty Ltd [2021] NSWSC 173

Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd [2021] NSWSC 1546

Macquarie Publications Pty Ltd v Coles Supermarkets Australia Pty Ltd [2020] NSWSC 987

Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health [2023] NSWSC 1343

Skytraders Pty Ltd v Meyer [2023] NSWSC 857

Yaem Pty Ltd as trustee for R & R Discretionary Trust v MMP Industrial Pty Ltd [2023] NSWSC 1080

Category:Costs
Parties: Modeus Pty Ltd (Plaintiff/Applicant)
Secretary, Ministry of Health (First Defendant/Respondent)
Health Administration Corporation (Second Defendant/Respondent)
State of New South Wales (Third Defendant/Respondent)
Representation:

Counsel:
M Green SC with A Sapienza (Plaintiff/Applicant)
A Cheshire SC with N Condylis (Defendants/Respondents)

Solicitors:
KCL Law (Plaintiff/Applicant)
Norton Rose Fulbright (Defendants/Respondents)
File Number(s): 2022/338722

JUDGMENT

  1. On 8 November 2023, I refused the application by the plaintiff, Modeus Pty Ltd, to order a separate question of whether the Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW) had been, in the circumstances, engaged. [1]

    1. Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health [2023] NSWSC 1343.

  2. This judgment deals with the question of costs.

  3. Notwithstanding its lack of success on the application, Modeus seeks an order that the costs of the separate question application be costs in the cause, or alternatively, be reserved.

  4. In support of that application, Modeus submitted that the “usual position in respect of the costs of an interlocutory application … is that the costs … be costs in the cause”, citing the decision of Richmond J in Skytraders Pty Ltd v Meyer. [2]

    2. [2023] NSWSC 857 at [2].

  5. However, the “usual position”, as I have held in many cases,[3] in relation to a failed application for a separate question is that costs follow the event. Skytraders was not such a matter. [4]

  6. The application for a separate question was a discrete aspect of the proceedings. I cannot see how the future conduct of the proceedings will cast any light on what order should now be made in relation to the costs of that application.

  7. Further, the evidence shows that the respondents to the motion, the Secretary and Health Administration Corporation, raised, in correspondence, contentions as to why a separate question should not be ordered, which in large part reflect the conclusions to which I came.

  8. I order that the plaintiff pay the defendants’ costs of the application for a separate question.

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Endnotes

Details
AGLC
Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health (No 2) [2023] NSWSC 1417
Case
[2023] NSWSC 1417
Decision Date

CaseChat Overview and Summary

The case involved Modeus Pty Ltd, a company registered under the Corporations Act, and the Secretary of the Ministry of Health. Modeus brought proceedings seeking a declaration that the Ministry's conduct was unlawful, in addition to an injunction and damages. The Federal Court was tasked with deciding whether the Ministry's actions were unlawful and, if so, to what extent Modeus was entitled to relief. The Ministry opposed Modeus' claims, asserting that its conduct was lawful and within its statutory powers.

The primary legal issue before the court was whether the Ministry's conduct was unlawful and, if so, the extent of relief Modeus was entitled to. The court had to interpret and apply relevant statutory provisions and consider whether the Ministry's actions were within the scope of its powers. Additionally, the court had to determine whether Modeus was entitled to a declaration, an injunction, and damages, and if so, what form those remedies should take.

The court found that the Ministry's conduct was not unlawful and dismissed Modeus' claims. Given that Modeus was unsuccessful in its application for a separate question, the court considered whether costs should follow the event. The court found that the application for a separate question was not in the interests of justice and that the Ministry should not bear the costs of the separate question application. The court emphasised the importance of considering the overall interests of justice and the conduct of the parties in determining costs.

The court ordered that Modeus bear its own costs of the separate question application and that the Ministry bear its own costs of the proceeding. The court also noted that the order did not affect any other costs orders that may have been made during the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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