Viterra Malt Pty Ltd & Ors v Cargill Australia Limited & Anor

The applicants, Viterra Malt Pty Ltd and others, sought an order for no costs in relation to a special leave application before the High Court of Australia, with Cargill Australia Limited and another as respondents. The dispute concerned the timing and effect of the respondents' waiver of privilege over certain documents, which the applicants argued was provided too late to allow for adequate review before a lengthy trial in the Supreme Court of Victoria.

The primary legal issue before the High Court was whether the applicants' delay in formally abandoning their special leave application, following the respondents' waiver of privilege, was unreasonable and thus disentitled them to a "no order as to costs" outcome. The applicants contended that the waiver, communicated by email only three business days before a 14-week trial, was not immediately effective as a waiver of privilege under section 122 of the *Evidence Act 1995* (Cth) until the substance of the documents was disclosed and reviewed. They argued that a four-week period was reasonably necessary to satisfy themselves that all relevant documents had been produced, given the respondents' prior adamant maintenance of privilege claims and the critical importance of the documents to their case.

The Court considered the principles governing costs when litigation is not pursued on its merits, referencing *Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin*. The applicants argued that their conduct was reasonable, as they had been seeking the documents for over a year and the late disclosure necessitated a thorough review. They further submitted that the respondents could have avoided the costs dispute by either consenting to the orders sought in the special leave application or by filing an affidavit confirming compliance with discovery obligations, thereby demonstrating their confidence in having produced all relevant documents. The trial judge's decision to grant a three-week adjournment in the Supreme Court of Victoria was presented as evidence supporting the reasonableness of the applicants' need for time to review the late-disclosed documents.

The applicants sought an order for no order as to costs in respect of the entire special leave application, arguing that their actions were a rational and explicable response to the circumstances created by the respondents' late waiver of privilege. They maintained that the respondents' failure to take simple steps to resolve the matter earlier led to the unnecessary costs dispute.