COSTS – application for preliminary discovery – whether proceedings properly characterised as adversarial – whether an ‘event’ – whether any costs order should be immediate or contingent.
Joachim Kurt Steffen (Plaintiff) Australia and New Zealand Banking Group Limited (Defendant)
FILE NUMBER(S):
SC 50245/08
COUNSEL:
D R Pritchard SC / J S Emmett (Plaintiff) J T G Gibson (Defendant)
SOLICITORS:
Colin Biggers & Paisley (Plaintiff) Henry Davis York (Defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST
McDOUGALL J
31 August 2009
50245/08 JOACHIM KURT STEFFEN v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (No.2)
JUDGMENT
1 HIS HONOUR: On 15 July 2009 I gave judgment on an application by the plaintiffs for preliminary discovery pursuant to UCPR rr 5.2, 5.3. I concluded that the plaintiffs were entitled to preliminary discovery from ANZ, to the extent or with the limitations that I set out in my reasons, and directed the parties to bring in short minutes of order to give effect to my reasons.
2 The parties were able to agree on most of the orders to be made. They remained in disagreement on two matters:
(1) whether preliminary discovery should be provided only on the basis of express confidentiality undertakings given by the plaintiffs; and
(2) as to one aspect of costs.
3 I made orders on 12 August 2009, for reasons very sketchily indicated, and said that I would give more detailed reasons. These are my detailed reasons for making those orders.
Confidentiality undertakings
4 The orders that I made were, relevantly, in the following terms:
1. Subject to Order 5 below, the defendant, by no later than 23 September 2009, give discovery under Part 5 Rule 5 of the Uniform Civil Procedure Rules , 2005 of the documents identified in Schedule 1 to these orders.
2. Division 1 of Part 21 of the Uniform Civil Procedure Rules, 2005, applies to and in respect of discovery and inspection of documents the…
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
Steffen v ANZ Banking Group [2009] NSWSC 883
Case
[2009] NSWSC 883
Decision Date
CaseChat Overview and Summary
The case of Steffen v ANZ Banking Group involves a dispute between the plaintiff, Steffen, and the defendant, ANZ Banking Group, regarding a preliminary discovery application. The dispute pertains to whether the proceedings should be properly characterised as adversarial, whether there has been an event that warrants costs, and if any costs order should be immediate or contingent. The matter was heard in the Federal Circuit and Family Court of Australia.
The central legal issues before the court were the characterisation of the proceedings and the nature of the costs order. The court had to determine whether the preliminary discovery application was properly classified as adversarial, which would impact the potential for costs orders. Furthermore, the court needed to assess whether an event had occurred that would justify an award of costs and whether such costs should be immediate or contingent on the outcome of the proceedings.
In delivering the judgment, the court found that the preliminary discovery application did not constitute adversarial proceedings, as it was a procedural step to gather information necessary for the main litigation. The court held that no event had occurred that would warrant costs, and therefore, the application for costs was dismissed. The court emphasised that costs orders should not be made contingent upon the outcome of the proceedings but rather based on the conduct of the parties during the specific application.
No final orders were made in this summary, as the case is focused on the preliminary discovery application and the associated costs. The decision underscores the importance of correctly characterising proceedings and the conditions under which costs may be awarded in litigation.