Roads Corporation v Love

[2008] VSC 311

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6693 of 2004

ROADS CORPORATION	Applicant
v
THOMAS JAMES LOVE	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 AUGUST 2008
DATE OF RULING:	21 AUGUST 2008
CASE MAY BE CITED AS:	ROADS CORPORATION v LOVE
MEDIUM NEUTRAL CITATION:	[2008] VSC 311

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Costs of discovery application – not limited to costs of hearing – payable with respect to application pursued subsequent to previous order.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Delany SC with Mr P Chiappi	Garland Hawthorn Brahe
For the Respondent	Mr A G Southall QC with Mr D R J O’Brien and Mr A J Fraatz (12 August 2008 only) Mr J F Doherty (13 & 14 August 2008 only)	McClusky’s Lawyers

HIS HONOUR:

1. Consequent upon my ruling of 19 August 2008 Roads Corporation seeks its costs of Mr Love’s application for further discovery.

1. It seeks costs on a solicitor client basis having regard to the outcome of that application.  It submits the Court should conclude that the application was so misconceived as to warrant an award on this basis.

1. More particularly, it submits the application for general discovery failed totally and was made in the context of a previous refusal to order such discovery, when such an application was also made in conjunction with an application for particular discovery.

1. It further submits the application for particular discovery was unsuccessful save partially with respect to one only of 103 document based applications. 

1. It points to the abandonment of the invalidity documents application only after the hearing before Cavanough J in April of this year.

1. Counsel for Mr Love submit that there should be no order as to costs although the application made over three days last week was in the most part unsuccessful.  It is submitted the process of discovery resulting from Mr Love’s application commenced effectively in April 2007, and resulted in significant concessions with respect to discovery: 

(a)       relating to the land monitor;

(b)relating to issues of potential cost of relocation of the gas transmission line;

(c)       relating to records of basalt resources;  and

(d)      relating to electronic records of VicRoads.

1. Further, it is submitted Mr Love’s application was sensibly and materially refined after its initial institution.

1. In my view VicRoads is entitled to an order for costs.  It was overwhelmingly successful upon the hearing and that hearing was a substantial and extended event.

1. There are two further issues which arise.  First, whether such costs should be awarded on other than a party party basis.  I am not persuaded that they should be.  In my view the applications were not so unreasonable as to warrant such an award.  The applications were in large part founded on references in discovered documents to other actual or potential documentation.  Although I have not acceded to them, it could not be said that they were entirely baseless.  Indeed, I have refused further discovery in a number of instances solely on the basis of my discretion having regard to its apparent lack of utility.

1. The remaining issue is whether such costs should be limited to those of the hearing or otherwise.  I have come to the view that they should be expressed to be costs of and incidental to the plaintiff’s application incurred after 8 November 2007.  On that date the Court relevantly ordered by consent as follows:

(a)       that Mr Love file and serve any amended particulars of claim;

(b)that the authority give discovery in relation to the relocation of the gas pipeline and basalt resource issues;

(c)that the parties file and serve further affidavits of documents making discovery of any document which relates to a question or issue in the proceeding and which had not been discovered in this or related proceedings;

(d)documents discovered in the related proceedings may be referred to and relied upon by the parties in this proceeding;  and

(e)       no order was made as to costs.

1. It seems to me these orders substantially resolved and redefined the discovery issues between the parties. 

1. Since that date no material amplification of discovery by VicRoads has occurred in respect of disputed matters, save by reason of clarification of VicRoads’ document retention policy in respect of emails.

1. Conversely, Mr Love’s claim for further particular discovery has been materially amplified by way of the addition of the claim made in Part 3 of Schedule A.

1. It has also, of course, been confined in a number of respects on an ongoing basis, but that confinement cannot logically lead to a disentitlement to costs on the part of VicRoads in respect of costs unsuccessfully agitated during the period in issue. 

1. I do not accept that the clarification of extent of electronic records relating to emails, obtained by way of the affidavit of Mr Pasarella, 23 April 2008, substantially affects the complexion of the outcome of Mr Love’s application for additional discovery during the period following 8 November 2007.

1. In my view it is plain that Mr Love was overwhelmingly unsuccessful in agitating his application for further discovery after 8 November 2007 and conversely, VicRoads was overwhelmingly successful in resisting such application.

1. I propose to make an order that Mr Love pay the costs of and incidental to the application during this period.

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