Pollack, Philip John v Retravision (NSW) Ltd

[1997] FCA 1266

FEDERAL COURT OF AUSTRALIA

COSTS - failure to make complete discovery - proceedings in which significant documents were produced during the course of the hearing - lengthy affidavits filed containing material irrelevant to the issues in the proceedings - whether there should be a departure from the general rule that an unsuccessful applicant should pay the respondent’s costs.

PHILIP JOHN POLLACK v RETRAVISION (NSW) LTD
NG 442 of 1995

SACKVILLE J
SYDNEY
21 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 442 of 1995

BETWEEN:	PHILIP JOHN POLLACK Applicant
AND:	RETRAVISION (NSW) LTD Respondent

JUDGE:	SACKVILLE J
PLACE:	SYDNEY
DATED:	21 NOVEMBER, 1997

MINUTES OF ORDERS

1. The applicant pay 75 per cent of the respondent’s costs of the proceedings.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 442 of 1995

BETWEEN:	PHILIP JOHN POLLACK Applicant
AND:	RETRAVISION (NSW) LTD Respondent

JUDGE:	SACKVILLE J
PLACE:	SYDNEY
DATED:	21 NOVEMBER, 1997

JUDGMENT ON COSTS

In my judgment delivered on 13 October 1997, I gave the parties the opportunity to make written submissions on costs.

The applicant submitted that he should be required to pay only 75 per cent of the respondent’s costs, for two reasons:

• first, the respondent failed to make complete discovery and produced significant documents only during the course of the hearing; and

• secondly, the respondent filed lengthy affidavits, containing considerable material irrelevant to the issues in the case.

The respondent conceded that it had failed to give complete discovery.  In particular, it had failed to discover memoranda and advices upon which it ultimately relied to support the version of events given by Mr Gibb and Mr Macauley.  However, the respondent pointed out that the documents were subject to client legal privilege, unless and until that privilege was waived.  The respondent also contended that the failure to produce or identify the documents at an earlier stage had not prolonged the trial and thus had not increased costs.

The respondent, in answer to the applicant’s second submission, argued that the affidavits prepared on its behalf, although lengthy, had set out the history of the dispute between the parties and had annexed documentation that proved to be helpful in understanding the factual background and in analysing the issues presented by the applicant’s claim.  The respondent contended that the form of the affidavits, at least to some extent, reflected changes in the way in which the applicant presented his case.

In my opinion, the failure of the respondent to identify, prior of the trial, the memoranda and advices upon which it ultimately relied, has a bearing upon the appropriate order for costs.  Had the respondent made it clear earlier that there were contemporaneous documents supporting the accounts given by Mr Gibb and Mr Macauley, the proceedings might well have taken a different course.  In particular, the applicant may well have reconsidered his position on some of the factual questions presented by his claim.  Whether or not that reconsideration would have lead him to abandon the proceedings, in my opinion there is a good chance that the hearing could have been shortened. 

The respondent has provided no explanation either for its failure to give proper discovery or to identify at an early stage the documents which ultimately proved so important in its case.  The fact that the documents were subject to client legal privilege (unless waived) does not constitute an explanation, since a claim of privilege would not have relieved the respondent from an obligation to identify the documents.  In any event, it is not merely the respondent’s failure to give discovery that is relevant, but its belated identification and production of documents critical to its case. 

In these circumstances, I think that there should be some departure from the general rule that an unsuccessful applicant should pay the respondent’s costs.

I also think it appropriate to take into account that the respondent sought to rely upon affidavits containing much material that was ultimately irrelevant to the issues in the case.  I accept that the applicant’s case did change in the course of the proceedings.  However, I do not think that the changes in the applicant’s case provide a complete explanation for the respondent’s reliance on irrelevant material.

Having regard to the circumstances to which I have referred, I think the appropriate order is that the applicant pay 75 per cent of the respondent’s costs of the proceedings.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:             21  November, 1997

Counsel for the Applicant:	Mr C A Evatt.
Solicitor for the Applicant:	Michael Maher.
Counsel for the Respondent:	Mr R W Tregenza.
Solicitor for the Respondent:	J R Gibb & Co.
Date of Hearing:	21 - 25 July 1997.
Date of Judgment:	21 November, 1997.