Ralph Lauren 57 Pty Ltd v Byron Shire Council
[2010] NSWLEC 257
•21 October 2010
Land and Environment Court
of New South Wales
CITATION: Ralph Lauren 57 Pty Ltd v Byron Shire Council [2010] NSWLEC 257 PARTIES: APPLICANT
RESPONDENT
Ralph Lauren 57 Pty Ltd
PJ George Investments Pty Ltd
Simon Clowes
Lisa Clowes
Ralph Lauren Pty Ltd
Margaret Baulderstone
Byron Shire CouncilFILE NUMBER(S): 40184 of 2010 CORAM: Craig J KEY ISSUES: COSTS :- successful application for an order for discovery - costs follow the event LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005CASES CITED: Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 76 LGRA 381
Hughes v Western Australia Cricket Association Inc (1986) 19 FCR 10DATES OF HEARING: 21 October 2010 EX TEMPORE JUDGMENT DATE: 21 October 2010 LEGAL REPRESENTATIVES: APPLICANT
M S Henry (Barrister)
SOLICITORS
Mallesons Stephen JaquesRESPONDENT
T R March (Solicitor)
SOLICITORS
HWL Ebsworth Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCRAIG J
21 October 2010
40184 of 2010 RALPH LAUREN 57 PTY LTD v BYRON SHIRE COUNCIL
EX TEMPORE JUDGMENT
1 HIS HONOUR: On 15 October 2010, I delivered judgment in an application made by the applicant in these proceedings for an order for formal discovery. That application was made in accordance with Uniform Civil Procedure Rule 21.2 (UCPR 21.2).
2 As my judgment and orders reveal, the applicant was substantially successful in obtaining the order that it sought. It now seeks an order that the respondent pay its costs of the application for discovery.
3 The issue as to whether formal discovery should be ordered has been a live issue between the parties since early September 2010. The matter has been before the List Judge on several occasions and on a number of those occasions the issue of discovery has been identified, ultimately resulting in the making of an order that the question be referred to me for determination.
4 As my judgment records, the applicant served the respondent with a list identifying the categories of documents sought to be discovered. The service of that list was made in order to conform with UCPR 21.2. The categories identified in that list were the subject of observations in a letter dated 30 September 2010 from the respondent’s solicitors to the applicant’s solicitors. The response really fell into two parts. In respect of some categories of documents, the letter indicated that objection to production was taken. In other cases, comment was made indicating that the category description was unclear or that the production of the documents sought would occasion undue hardship to the respondent.
5 When the hearing commenced on 13 October 2010, both parties sought to rely upon documents that had been served upon the other only the previous evening. On the part of the applicant, it had revised the list containing the categories of documents for which discovery was sought and it sought to support its application upon affidavit evidence sworn by the solicitor having the carriage of the matter. For the respondent’s part, it also sought to rely upon an affidavit sworn by its solicitor. In light of these events, I acceded to a request by the parties for a short adjournment so that recently served documents could be considered and discussed. When the hearing resumed, there was no indication on behalf of the respondent that it required more time either to consider the supporting affidavit or the amended list identifying the categories of documents sought.
6 The arguments advanced by the respondent at the principal hearing fell into two categories. The first was to oppose, as a matter of principle, the making of any order for formal discovery. It is appropriate to observe that this was the primary matter agitated by it.
7 As my judgment of 15 October records, the respondent indicated its preparedness to provide informal discovery of eight of the twelve categories of documents sought. Notwithstanding its preparedness so to do, its argument focussed upon the exercise of the acknowledged discretion of the Court to refuse the making of such an order.
8 The second broad basis of argument advanced on behalf of the respondent was to resist an order in respect of specified documents or categories of documents identified in the applicant’s list. Ultimately, I determined that this was a case in which it was appropriate to order formal discovery. In response to the specific objections advanced by the respondent, I determined that the order should not extend to one of the twelve categories of documents sought while in respect of another (Category 8) some better description of the documents required should be provided but that the category, as understood by the respondent, was appropriate to be the subject of the order.
9 In opposing an order for costs, the respondent has relied upon the belated amendment to the categories of documents sought, referring to the amended list served on the eve of the hearing. It also sought to found its opposition to an order on the basis that it had been successful in opposing discovery in respect of one of the twelve categories of documents sought by the applicant. It further argued that its opposition to the making of a discovery order was appropriate because one of the bases upon which the order was sought was only made apparent through the affidavit of the applicant’s solicitor served on the eve of the hearing.
10 As to the latter matter, I do not consider that the argument has substance. If the respondent was prejudiced by the late receipt of that affidavit, it was open to it to choose one of two courses. It could have sought an adjournment beyond the short adjournment that I granted to allow it further time to consider its position. Alternatively, having considered the basis articulated in the applicant’s solicitor’s affidavit, it could have determined no longer to maintain its opposition to an order for discovery. Neither course was taken by it. Rather, it proceeded to argue the matter on the two broad bases that I have described.
11 While it is true that the applicant has not been wholly successful in obtaining an order in respect of every category of documents sought, it has been substantially successful. As the authorities make clear, when an application is made or a defence mounted, the successful party ought not usually be deprived of an order for costs to which it would otherwise be entitled by reason of the fact that an argument advanced in support of its position has not been wholly successful (cf Hughes v Western Australian Cricket Association Inc (1986) 19 FCR 10; Australian ConservationFoundation v Forestry Commission of Tasmania (1988) 76 LGRA 381). The cases cited amply demonstrate that substantial success will ordinarily carry with it an order of the kind that the applicant now seeks.
12 These being proceedings in Class 4 of the Court’s jurisdiction, the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules apply. While not depriving the Court of a discretion, the effect of these provisions is that an order for costs should ordinarily follow the event. The event in the present case is the making of an order for discovery that was opposed by the respondent. I am therefore of the opinion that it is appropriate to make an order requiring the respondent to pay the applicant’s costs of the motion for discovery.
13 The parties are before me today because I had directed the applicant to bring in short minutes of order for discovery conformably with the judgment delivered on 15 October 2010. The parties are agreed as to the terms of the orders and directions that are appropriate to be given, the only outstanding issue between them being the question of costs that I have now determined.
14 It is therefore appropriate that I make orders generally in conformity with the short minutes prepared by the parties.
15 The orders that I make are therefore as follows:
1. That the respondent must give discovery to the applicants in accordance with Div 1 of Pt 21 of the Uniform Civil Procedure Rules 2005 of the documents described in the “Categories of Documents For Discovery By the Respondent” attached.
2. That the respondent serve on the applicants a list of documents in accordance with the Uniform Civil Procedure Rule 21.3(1) by 2 December 2010.
3. That the respondent is to pay the applicant's costs of preparing for and appearing at the hearings on 13 October and on 21 October.
4. That the proceedings be listed for further directions before the list judge on 10 December 2010.
5. The parties have liberty to apply to relist this matter on three days notice.
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