The Printers Pty Limited v Hawk Media Group Pty Limited t/as Hawk Print

[2025] NSWSC 194

Supreme Court

New South Wales

Medium Neutral Citation:

The Printers Pty Limited v Hawk Media Group Pty Limited t/as Hawk Print [2025] NSWSC 194

Hearing dates:

On the papers

Date of orders:

12 March 2025

Decision date:

12 March 2025

Jurisdiction:

Equity - Applications List

Before:

Brereton J

Decision:

Orders Made

Catchwords:

COSTS – party/party – general rule that costs follow the event – where there is an application for costs arising from preliminary discovery – whether a party has conducted itself so unreasonably that another party should obtain the benefit of a costs order – whether the Court is satisfied that one party would have almost certainly succeeded if the matter was fully tried.

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Andrews Advertising Pty Ltd v David Andrews [2011] NSWSC 244

Gooley & Ors v Breda Pty Ltd & Ors (No 2) [2017] NSWSC 1505

Transfield Services (Australia) Pty Limited v James Gaha [2012] NSWSC 865

Category:

Costs

Parties:

The Printers Pty Limited ACN 151 115 230 (Plaintiff)
Hawk Media Group Pty Limited t/as Hawk Print ACN 659 042 789 (First Defendant)
Paul Chand (Second Defendant)
Michael Hawkins (Third Defendant)

Representation:

Counsel:
M Baroni (Plaintiff)
D Ronzani (Defendants)

Solicitors:
Mills Oakley (Plaintiff)
Pigott Stinson (Defendants)

File Number(s):

2023/00180799

Publication restriction:

N.A.

JUDGMENT

1. This concerns an application for costs arising from an application for preliminary discovery.

2. The proceedings were commenced by Summons filed on 6 June 2023. The matter was listed for a two-day hearing scheduled to commence on 11 July 2024.

3. In early July 2024, there was an exchange of correspondence between the parties’ solicitors regarding the proposed categories of preliminary discovery. An agreement was reached between the parties regarding the form of orders and categories of discovery for each of the Defendants.

4. On 10 July 2024, Richmond J made consent orders vacating the hearing and ordering the Defendants to provide discovery to the Plaintiff of the documents in the categories outlined in the annexures of the orders. Costs were reserved.

5. The proceedings were resolved, apart from the question of costs prior to the commencement of the hearing. There was agreement on one matter concerning costs, which is that the Plaintiff accepts that the Defendants should have their costs of the aborted mediation scheduled for 15 April 2024 on a party and party basis.

6. In this application, the Plaintiff seeks an order for each party to pay their own costs of the proceedings (save for the Plaintiff paying the Defendant’s costs of the aborted mediation as referenced above).

7. The Defendants seek an order for the Plaintiff to pay their costs of the proceedings on a party and party basis. They contend that the categories of documents that were ordered to be produced on 10 July 2024 were substantially the categories that the Defendants had offered to provide in August 2023. The Defendants also submit that since the consent orders differ from the relief sought in the Amended Summons filed on 17 January 2024, the Plaintiff has effectively capitulated. The Defendants also contend that the Plaintiff acted so unreasonably that it should be ordered to pay the Defendants’ costs, including the costs of this application. In respect of the costs of providing preliminary discovery pursuant to the 10 July 2024 orders, the Defendants seek orders that those costs to be reserved to the proceedings issued by the Plaintiff in case number 2025/00069111.

8. The Plaintiff contends that the categories of discovery agreed between the parties were not ‘substantially’ the same to those offered by the Defendants in August 2023 on a without prejudice and without admissions basis. The Plaintiff submits that concessions were made during the negotiations which resulted in the categories of documents differing in both date and substance to those proposed in August 2023 by the Defendants. The Plaintiff submits that it agreed to the categories of discovery on the basis that they were considered sufficient to determine whether to commence proceedings or otherwise.

9. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that costs generally follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. However, in this case there was no “event” because there was no adjudication on the merits.

10. The relevant principles that apply when proceedings are finalised without a hearing on the merits were summarised by Ball J in Transfield Services (Australia) Pty Limited v James Gaha [2012] NSWSC 865 at [27], as follows:

The general rule in relation to costs is that costs follow the event unless it appears to the court that some other order should be made: Uniform Civil Procedure Rules 2005, r 42.1. Where proceedings are finalised without a hearing on the merits, there is no event to "enliven" the operation of UCPR r 42.1: Fire Containment Pty Ltd v Robins (No 2) [2011] NSWSC 547 at [11] per Gzell J. Nor is it appropriate for the court to embark on an inquiry of what the outcome would have been. Consequently, where proceedings are settled and no order for costs has been agreed, it is generally appropriate that each party bear their own costs: Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-5 per McHugh J. There are, however, two exceptions to that general principle. One is where one of the parties has acted so unreasonably that the other party should obtain the costs of the action. The other is where the court is confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried: Lai Qin at 624-5. One instance where the court may be satisfied that that is the position is where the consent orders agreed by the parties amount, in effect, to capitulation by one of the parties.

11. I accept that an order for costs may be made against a party, after proceedings are finalised without a hearing on the merits, if it rejected an offer to settle the proceedings and ultimately did no better by the final orders of the Court. The usual principles concerning settlement offers, or Calderbank offers, would apply.

12. In the present case, I am satisfied that the final orders made by Richmond J on 10 July 2024 were superior in material ways to the offer that was made by the Defendants in August 2023 and rejected by the Plaintiff. For example, the date ranges for certain categories were expanded or covered different periods of time. That being so, this is not a case where a party has unreasonably rejected a settlement offer.

13. Nor is this a case where it can be said that the Plaintiff has capitulated. Capitulation does not occur simply because a compromise results in relief that is less than the entirety of the relief that was sought by the Plaintiff. Compromise is not capitulation. There was also a compromise made on the Defendants’ behalf as they agreed to produce documents pursuant to the orders of the Court.

14. I am not satisfied that the Plaintiff has conducted itself in such an unreasonable manner to justify a costs order in favour of the Defendants. There were some unfortunate delays, but an explanation has been provided for them.

15. In those circumstances, I am not satisfied that there is good reason to depart from the usual starting point in a case such as this. I have come to the conclusion that the appropriate order for costs in these proceedings is that each party should bear its own costs, subject to the exception of the Plaintiff agreeing to pay the Defendants’ costs of the aborted mediation on a party and party basis.

16. As to the costs of complying with the preliminary discovery pursuant to the 10 July 2024 orders, there is authority that it is appropriate that the costs of compliance should be dealt with as part of the proceedings for preliminary discovery on the basis that the jurisdiction to grant preliminary discovery is an extraordinary one and a defendant required to produce documents can recover its costs on a special basis, as can a subpoenaed party: see Andrews Advertising Pty Ltd v David Andrews [2011] NSWSC 244 at [56]-[57] per Ball J and Gooley v Breda Pty Ltd (No 2) [2017] NSWSC 1505 at [13]-[14] per Slattery J. However, in circumstances where the Plaintiff has now commenced proceedings and given that the Defendants seek orders that the costs of compliance should be reserved to those proceedings, I am in this case prepared to make orders to that effect.

17. The orders of the Court will be that:

1. By consent, the Plaintiff to pay the Defendants’ costs of the aborted mediation that was scheduled to occur on 15 April 2024.

2. The costs to the Defendants of complying with the orders of the Court made on 10 July 2024 be reserved to the proceedings issued by the Plaintiff in proceedings numbered 2025/00069111.

3. Otherwise, each party is to bear its own costs.

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Decision last updated: 12 March 2025