Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 2]
[2009] WASC 150 (S)
•3 JUNE 2009
STRZELECKI HOLDINGS PTY LTD -v- CABLE SANDS PTY LTD [No 2] [2009] WASC 150 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 150 (S) | |
| Case No: | CIV:1591/2006 | ON THE PAPERS | |
| Coram: | BEECH J | 3/06/09 | |
| 24/06/09 | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff to pay defendant's costs of the application | ||
| B | |||
| PDF Version |
| Parties: | STRZELECKI HOLDINGS PTY LTD (ACN 051 222 253) CABLE SANDS PTY LTD (ACN 008 678 386) |
Catchwords: | Practice and procedure Discovery Application for inspection Costs Application unsuccessful Whether costs should follow the event |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 24 JUNE 2009 FILE NO/S : CIV 1591 of 2006 BETWEEN : STRZELECKI HOLDINGS PTY LTD (ACN 051 222 253)
- Plaintiff
AND
CABLE SANDS PTY LTD (ACN 008 678 386)
Defendant
Catchwords:
Practice and procedure - Discovery - Application for inspection - Costs - Application unsuccessful - Whether costs should follow the event
Legislation:
Nil
Result:
Plaintiff to pay defendant's costs of the application
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Lawton Gillon
Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 BEECH J: The plaintiff applied for an order to inspect documents discovered by the defendant. The plaintiff's application was unsuccessful. The defendant seeks its costs of the application. The plaintiff contends that it should have its costs up to 7 May 2009.
2 For the reasons that follow, I consider that the plaintiff should pay the defendant's costs of the application.
Background
3 Pursuant to my order of 15 January 2009, by affidavit of Ms Karen Hauff, sworn 19 January 2009, the defendant gave further discovery. The relevant parts of the affidavit are summarised or set out in [4] - [6] of my reasons on the application.
4 In correspondence prior to the commencement of the application, the defendant's solicitors had stated that the documents were protected by legal advice privilege. Notwithstanding that, the plaintiff's written submissions of 31 March 2009 contended that the defendant carried an onus of establishing that there was, at the time the documents were created, a real prospect of litigation.
5 The defendant's submissions in opposition dated 8 April 2009 contended that the documents were protected by legal advice privilege. It is true, as the plaintiff emphasises, that those submissions also referred (at par 6) to the existence of a real prospect of litigation, thereby apparently not abandoning the alternative claim to litigation privilege. Nonetheless, read as a whole, the central contention in the submissions was that the documents were protected by advice privilege. That is what the defendant's solicitors had stated prior to the commencement of the application.
6 The plaintiff's submissions in reply dated 28 April 2009 contended that the defendant had failed to establish that the documents were protected by advice privilege. The plaintiff did not adduce any evidence to displace the claim to privilege.
7 On 7 May 2009, pursuant to the leave referred to in [10] of my reasons on the application, the defendant filed further evidence.
8 The plaintiff seeks its costs up to the filing of this further evidence.
9 The filing of the further evidence by the defendant did not lead to the plaintiff abandoning the application. To the contrary, the plaintiff put on further submissions in support of its application.
(Page 4)
Plaintiff's submissions
10 The plaintiff points to par 6 of the defendant's submissions dated 8 April 2009 and submits that the defendant's claim to privilege had proceeded at all times on the basis of both litigation privilege and advice privilege. Consequently, the submission continues, it was necessary for the plaintiff to undertake all the work it did between the filing of the application and receipt of Mr Wilson's affidavit of 7 May 2009.
The proper order as to the costs of the application
11 The discretion of the court in relation to costs is broad. Nevertheless, the success of the defendant in opposing the application will, absent other factors, generally lead to an order for costs in its favour.
12 I am not persuaded that the matters relied upon by the plaintiff are sufficient to call for a departure from the general rule that costs follow the event. That is so, I find, taking into account the following:
(a) the plaintiff's initial submissions focused solely on attacking a claim to litigation privilege, notwithstanding that, prior to the application, the defendant had stated that it relied on advice privilege;
(b) the plaintiff did not put on any evidence to displace the claim to privilege, notwithstanding that there are authorities (referred to in the defendant's submissions of 8 April 2009) to the effect that an objection to produce documents due to privilege will be upheld unless displaced by evidence, see [17] of my reasons on the application; and
(c) following receipt of Mr Wilson's affidavit of 7 May 2009 the plaintiff maintained its application and filed further submissions, and was unsuccessful on the application.
13 Taking into account the amount allowed in the practice direction, the exchanges of submissions in the application, and the absence of an oral hearing, I fix the costs in the sum of $2,000.
14 For these reasons, I order that the plaintiff pay the defendant's costs of the application fixed in the sum of $2,000, payable within seven days.
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