Moore v Downer EDI Engineering - Projects Pty Ltd - [2009] WADC 24

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MOORE -v- DOWNER EDI ENGINEERING - PROJECTS PTY LTD & ORS [2009] WADC 24

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 18 FEBRUARY 2009

DELIVERED : 20 FEBRUARY 2009

FILE NO/S: CIV 386 of 2008

BETWEEN: JOHN ADAM MOORE
Plaintiff
AND
DOWNER EDI ENGINEERING - PROJECTS PTY LTD
First Defendant
LYCOPODIUM ENGINEERING PTY LTD
Second Defendant
LAMPSON (AUSTRALIA) PTY LTD
Non-party

Catchwords:

Practice and procedure - Western Australia - Application for non-party discovery - Opposed - Basis for costs

Legislation:

Nil

Result:

Costs on an indemnity basis

Representation:

Counsel:

Plaintiff:     No Appearance
First Defendant              :     Ms W Glasser
Second Defendant         :     No Appearance
Non-party:     Mr G Underwood

Solicitors:

Plaintiff:     Bradley Bayly
First Defendant              :     Crisp Civitella Slater
Second Defendant         :     Williams Hancock Lawyers
Non-party:     Hewitts Commercial Lawyers

Case(s) referred to in judgment(s):

Hodzic v Bosnian‑Hercegovian Muslim Society, unreported; CCA SCt of WA; Library No 980036; 3 February 1998
Jovista Pty Ltd v FAI General Insurance Co Limited [1999] WASC 44
Swancross Corporation Pty Ltd & Anor v The Minister for Planning and Infrastructure for the State of Western Australia [2004] WASC 259
Waller v Waller [2008] WASC 51

DEPUTY REGISTRAR HEWITT: In this action the plaintiff sued the first defendant and another seeking damages for personal injury which he sustained at a mine site whilst carrying out a task of manually unloading a crane cable from its drum. The first defendant was the employer of the plaintiff and the cause of action which he pursued against that defendant was a breach of its duty of care to him arising out of the employment relationship. By summons filed on 31 October 2008 the first defendant sought discovery from a non‑party namely Lampson (Australia) Pty Ltd and that application came before the Court on 18 November 2008, was adjourned to 25 November 2008 and subsequently adjourned by consent of the parties. When the matter first came before the Court the non‑party was represented and argued against making of the orders in terms of the chamber summons then before the Court. Ultimately the action between the plaintiff and the first defendant was settled and as a consequence there was no further purpose in the chamber summons for non‑party discovery.
The application however was not resolved and the non‑party has now applied to the Court for an order that the first defendant pay its costs in relation to the chamber summons. There is no issue between the parties that the plaintiff should pay costs to the non‑party, but the contention between the parties is whether or not those costs should be allowed on an indemnity basis, and that is the matter which was the subject of argument when the matter came before me on 18 February 2009.
There are a number of cases which have been decided in the Supreme Court of Western Australia which bear upon this issue many of which appear to have been decided by Master Sanderson. Master Sanderson is clearly of the view that indemnity costs ought to be awarded in favour of a non‑party for the costs of giving discovery. By way of illustration rather than exhaustive analysis of Master Sanderson's decisions I refer to the case Swancross Corporation Pty Ltd & Anor v The Minister for Planning and Infrastructure for the State of Western Australia [2004] WASC 259 at 5 where the Master had this to say:
"It is worth mentioning at this point that I have taken the view that, as a general rule, a non‑party who provides discovery ought be fully indemnified for the costs of doing so: Jovista Pty Ltd v FAI General Insurance Co Ltd[1999] WASC 44. This is certainly the case where the party from whom discovery is sought is not a party to the action and it is never intended that it should be a party to any action. In the case of a potential party, there is, I think, a case for reserving costs until the party seeking discovery has decided whether or not it will issue proceedings."
That decision was approved by Mr Justice Simmonds in Waller v Waller [2008] WASC 51 at 29 where following a review of the decisions and in particular those by Master Sanderson his Honour advanced the view at [219] "in my preliminary view that would seem to be the correct approach in this case".
A distinction however has been drawn by the first defendant between those cases and that prevailing here. The distinction advanced is that the decisions relate to the cost of compliance with a discovery order rather than the costs of appearing to argue an application that discovery be given. Again Master Sanderson has dealt with this matter in the case of Jovista Pty Ltd v FAI General Insurance Co Limited [1999] WASC 44 where at [12] appearing on 3 he said:
"In relation to legal advice, it would be wholly unreasonable to expect a non‑party who is called upon to give discovery not to consult solicitors. To do so would run the risk of failing to comply properly with any order and perhaps swearing an affidavit which was inaccurate. The reasonable costs of the non‑party taking legal advice should be paid by the applicant."
In the present case the non‑party took legal advice and that advice was that the application should be opposed on various grounds not the least of which was a fact that the application was framed extremely broadly and would place a considerable burden upon the non‑party to no apparent benefit to the first defendant. I therefore conclude on the basis that the authorities before me that the costs which should be awarded to the non‑party should include the costs of representation and argument.
I now turn to the basis upon which those costs should be allowed. The non‑party of course contends that they should be on an indemnity basis whereas the first defendant contends otherwise. In Waller v Waller (supra) his Honour Mr Justice Simmons said at [210] appearing on 27:
"It appears to be accepted in this jurisdiction that, in the ordering of discovery from a potential party (under O 26A r 4), as well as a non‑party (O 26A r 5), the respondent is not a party to a 'normal civil suit' and hence the normal rules as to costs do not necessarily apply."
That reference is itself a "from civil procedure in Western Australia (5 March 2008) [26 A.7.1]. It appears to be cited with approval and is consistent with other comments within cases.
The first defendant contends that indemnity costs should only awarded in cases where some level of delinquency or misconduct is recognised. Certainly in a party party situation that is the case. This however is not a party party situation. In my view the authorities establish the fact that indemnity costs may be ordered in circumstances such as this without pointing to some delinquent behaviour on the part of the first defendant and in that I rely on the cases of Master Sanderson as supported by his Honour Mr Justice Simmons.
There is no doubt that in some instances the costs on other than an indemnity basis have been ordered in similar circumstances to that prevailing in this matter. An example being Hodzic v Bosnian‑Hercegovian Muslim Society, unreported; CCA SCt of WA; Library No 980036; 3 February 1998 decision of Master Bredmeyer. Notwithstanding that such decisions exist I none the less think that the preponderance of authority favours the non‑party and that generally costs within this jurisdiction are awarded on an indemnity basis to a non‑party against whom an application for discovery has been made. Additionally if, as appears to be the case, the Supreme Court scale does not apply to the circumstances of this application, and bearing in mind that the non‑party, its solicitor and counsel are all located in New South Wales, it is difficult to see any other basis upon which costs could be awarded.
Were I to award costs to the non‑party on an indemnity basis that order would nonetheless contain within it a certain level of review by any taxing officer. Indemnity costs are not carte blanche for every claim which might be advanced on behalf of the non‑parties. The claim can be contested on the basis that the amount claimed is unreasonable or that the cost was unreasonably incurred.
It is therefore my conclusion that the appropriate order to make in the present case is that the costs payable by the first defendant to the non‑party Lampson (Australia) Pty Ltd be taxed and paid on an indemnity basis save where those costs are of unreasonable amount or unreasonably incurred.