FEDERAL COURT OF AUSTRALIA
Rose v Essential Energy (No 2) [2020] FCA 347
File number: NSD 1958 of 2018 Judge: MARKOVIC J Date of judgment: 17 March 2020 Catchwords: COSTS – application for preliminary discovery pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) – where prospective applicants were successful in the application which was contested by prospective respondent – prospective respondent ordered to pay prospective applicants’ costs of the application – prospective applicants ordered to pay prospective respondent’s reasonable costs of providing discovery Legislation: Federal Court of Australia Act 1976 (Cth) ss 20A, 43
Federal Court Rules 2011 (Cth) rr 7.23, 7.29(b)
Cases cited: Alstom PowerLimited v Eraring Energy [2004] FCA 706
DSE (Holdings) Pty Limited v InterTAN Inc (2004) FCA 1251
ObjectiVision Pty Limited v Visionsearch Pty Limited (No 3) [2015] FCA 304
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (No 2) [2019] FCA 657
Date of hearing: Determined on the papers Date of last submissions: 21 February 2020 (Prospective Applicants)
2 March 2020 (Prospective Respondent)
4 March 2020 (Prospective Applicants)Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 33 Counsel for the Prospective Applicants: Mr S Habib SC Solicitor for the Prospective Applicants: Mr B Petrovski of William Roberts Lawyers Counsel for the Prospective Respondent: Mr H Pintos-Lopez Solicitor for the Prospective Respondent: Mr C Wood of Sparke Helmore Lawyers ORDERS
NSD 1958 of 2018 BETWEEN: LAWRENCE JAMES ROSE
Prospective First Applicant
SUSAN ELIZABETH ROSE
Prospective Second Applicant
AND: ESSENTIAL ENERGY ABN 37 428 185 226
Prospective Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
17 MARCH 2020
THE COURT ORDERS THAT:
1.Pursuant to r 7.29(b) of the Federal Court Rules 2011 (Cth) the prospective applicants are to pay the prospective respondent’s reasonable costs and expenses of providing discovery and production in accordance with Orders 1, 2 and 3 of the Orders made on 14 February 2020.
2.The prospective respondent is to pay the prospective applicants’ costs of the application for preliminary discovery.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
On 14 February 2020 I made orders, among others, pursuant to r 7.23 of the Federal Court Rules 2011 (Cth) (Rules) that the prospective respondent, Essential Energy (Essential), give discovery to the prospective applicants, Mr and Mrs Rose, of the documents and categories of documents identified in Annexure A to those orders. At the request of the parties I did not determine the issue of costs of the preliminary discovery application (Application) or of the provision of the discovery the subject of the orders that I made but made orders permitting the parties to file submissions in relation to both the costs of the Application and of provision of…
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- AGLC
- Rose v Essential Energy (No 2) [2020] FCA 347
- Case
- [2020] FCA 347
- Decision Date
CaseChat Overview and Summary
The court ultimately concluded that it was not fair for Essential Energy and its customers to bear the costs of compliance, particularly given the potentially significant and intrusive nature of the discovery orders. The court found that if the applicants were successful in any future proceedings, they could seek to recover compliance costs in those proceedings, subject to the discretion of the trial judge. The court also noted that the respondent's decision to contest the application did not affect the costs of providing the discovery. Consequently, the court ordered that the applicants were to bear the respondent's costs of providing the discovery, while the respondent was to bear the applicants' costs of the application for preliminary discovery. This decision was consistent with the principles outlined in relevant case law and the Federal Court Rules 2011.
Orders
Orders of the court
1. Pursuant to r 7.29(b) of the Federal Court Rules 2011 (Cth) the prospective applicants are to pay the prospective respondent’s reasonable costs and expenses of providing discovery and production in accordance with Orders 1, 2 and 3 of the Orders made on 14 February 2020.
2. The prospective respondent is to pay the prospective applicants’ costs of the application for preliminary discovery.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Essential submits that there is no good reason why it, and ultimately its customers, should be expected to carry these costs, potentially for years, in circumstances where Mr and Mrs Rose may ultimately be unsuccessful at trial, especially given that they are supported by a litigation funder. Essential says that if Mr and Mrs Rose ultimately bring a proceeding and are successful they can seek to recover compliance costs in the ordinary way and no contingent order is required. Consideration Rule 7.29(b) of the Rules relevantly provides that a person against whom an order is made under Div 7.3 of Pt 7 of the Rules may apply to the Court for an order that the prospective applicant pay the person’s cost and expenses. In my opinion it is appropriate that an order be made that Mr and Mrs Rose meet Essential’s costs of providing the discovery the subject of Orders 1, 2 and 3 of the orders made on 14 February 2020. That Essential could have provided the documents now the subject of the orders for preliminary discovery in answer to the GIPA Act applications made on behalf of Mr and Mrs Rose, a matter about which I do not seek to pass any comment or make any finding, is not to the point. Even if it had provided documents in that way, costs issues were likely to have arisen. Nor, as I have already observed, is the submission that Essential is bound to act in accordance with New South Wales model litigant policies a matter that would persuade me to make the order sought by Mr and Mrs Rose. Further, that Essential chose actively to dispute the Application does not add to, affect or cause the cost of providing the discovery. I accept Essential’s submission that there is no good reason why it and ultimately its customers should have to bear these costs. As Perry J said in ObjectiVision at [39] to make Essential await the possible outcome of a proceeding, if any, commenced by Mr and Mrs Rose for the costs incurred in complying with the order for preliminary discovery, “given the extraordinary and intrusive nature of these orders and given that the costs of compliance may be significant”, is not fair. In any event, it may be that if Mr and Mrs Rose ultimately bring a proceeding and are successful they can seek to recover compliance costs in that proceeding, subject to the discretion of the trial judge: see Alstom PowerLimited v Eraring Energy [2004] FCA 706 at [17]; ObjectiVision at [39].CONCLUSION I will make orders accordingly.