Procter v Kalivis (No 3)

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.