EVE LYNNE PROCTER, BRENDA MAUREEN PROCTER and DOC-IT PTY LTD (ACN 088 334 534) v EVANGELO KALIVIS, ACN 088 370 996 PTY LTD (ACN 088 370 996), PATRICIA ANNE DABROWSKI and TIMOTHY JOHN DABROWSKI
File number:
SAD 91 of 2009
Judge:
BESANKO J
Date of judgment:
4 November 2010
Catchwords:
COSTS — application for costs of application for preliminary discovery brought pursuant to O 15A r 6 of Federal Court Rules — where respondents filed Lists of Documents without need for argument — where applicants made substantially successful application for further and better discovery which respondents contested — whether respondents should pay applicants’ costs of application for preliminary discovery — whether costs of application for preliminary discovery should be in discretion of trial judge if substantive proceeding issued
HELD: Respondents ordered to pay applicants’ costs of contested application upon which applicants were substantially successful. However, respondents had not adopted adversarial approach to application for preliminary discovery generally and therefore applicants ordered to pay respondents’ costs unless proceedings instituted within 2 months, in which case costs to be in discretion of the trial judge.
1.The List of Documents filed and served by the respondents on 7 August 2009.
2.The Amended List of Documents filed and served by the respondents on 14 October 2009.
3.The Further Amended List of Documents filed and served by…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Procter v Kalivis (No 3) [2010] FCA 1194
Case
[2010] FCA 1194
Decision Date
CaseChat Overview and Summary
The case of Procter v Kalivis (No 3) involves an application for costs of an application for preliminary discovery brought pursuant to O 15A r 6 of the Federal Court Rules. The respondents filed Lists of Documents without the need for argument, while the applicants made a substantially successful application for further and better discovery, which the respondents contested. The court was required to determine whether the respondents should pay the applicants' costs of the application for preliminary discovery and whether the costs should be in the discretion of the trial judge if the substantive proceeding was issued.
The court found that the respondents should pay the applicants' costs of the contested application for preliminary discovery upon which the applicants were substantially successful. However, the respondents had not adopted an adversarial approach to the application for preliminary discovery generally. Therefore, the applicants were ordered to pay the respondents' costs unless proceedings were instituted within two months, in which case the costs would be in the discretion of the trial judge.
The court's reasoning was based on the fact that the applicants were substantially successful in their application for further and better discovery, and the respondents had not taken an adversarial approach to the application for preliminary discovery. The court also noted that the costs of the application for preliminary discovery should be in the discretion of the trial judge if the substantive proceeding was issued within two months.
The final orders of the court were that the application issued by the applicants on 19 June 2009 be dismissed. The respondents were ordered to pay the applicants' costs of and incidental to paragraphs 2, 3, and 4 of the notice of motion dated 20 November 2009. The costs of the application referred to in paragraph 1 above were to be dealt with as follows: the respondents' costs were to be paid by the applicants if the applicants did not commence a proceeding of the nature foreshadowed by them in this proceeding within two months of the date hereof, or the costs were to be in the discretion of the trial judge if the applicants commenced a proceeding of the nature foreshadowed by them in this proceeding within two months of the date hereof.
Orders
Orders of the court
1. The application issued by the applicants on 19 June 2009 be dismissed.
2. The respondents pay the applicants’ costs of and incidental to paragraphs 2, 3 and 4 of the notice of motion dated 20 November 2009.
3. The costs of the application referred to in paragraph 1 above (excluding the costs referred to in paragraph 2 above, and the costs referred to in paragraph 2 of the orders made on 25 June 2010) are to be dealt with as follows:
3.1 the respondents’ costs are to be paid by the applicants if the applicants do not commence a proceeding of the nature foreshadowed by them in this proceeding within two months of the date hereof; or
3.2 the costs are to be in the discretion of the trial judge if the applicants commence a proceeding of the nature foreshadowed by them in this proceeding within two months of the date hereof.