Wattyl Australia Pty Ltd v Peacemen Industries Pty Ltd
[2010] VCC 1020
•5 August 2010 – Revised 11 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL
GENERAL DIVISION
Case No. CI-10-02246
| WATTYL AUSTRALIA PTY LTD | Plaintiff |
| (ACN 000 035 914) | |
| v | |
| PEACEMEN INDUSTRIES PTY LTD | Defendant |
| (ACN 110 233 077) |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 July 2010 |
| DATE OF RULING: | 5 August 2010 – Revised 11 August 2010 |
| CASE MAY BE CITED AS: | Wattyl Australia Pty Ltd v Peacemen Industries Pty Ltd (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1020 |
REASONS FOR JUDGMENT
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Catchwords: PRACTICE and PROCEDURE – discovery – cost of copying of documents – whether scale rate or commercial rate – County Court Civil Procedure Rules 2008, Appendix A, Scale of Costs.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Keefe (solicitor) | Clayton Utz |
| For the Defendant | Ms D Ferrari | Harris Legal |
| HIS HONOUR: |
1 The issue on which I reserved my decision is whether, pursuant to the defendant’s request, I should fix a photocopying charge for the total of 4,502 pages of the plaintiff’s documents, which the defendant wishes to be copied. The dispute in essence is as to the reasonable costs of photocopying. The fee fixed by the County Court Civil Procedure Rules 2008’ Scale of Costs is $2.20 per page which, if awarded for some 4,502 pages, would result in a charge of about $9,900.
2 This issue might normally arise on taxation of costs. However, it is not uncommon for a party to seek a variation of the Scale rate before it incurs the costs of photocopying.
3 Correspondence was forwarded to the Court by the defendant and copied to the plaintiff’s solicitors to institute this application. In it, there was some discussion between the parties, which led to the plaintiff’s solicitors offering a copying rate of $1 per page if there was reciprocity in the charge applied by the defendant in the case of a request by the plaintiff for later photocopying. Be that as it may, there is still a substantial difference between the cost of photocopying at that rate, and the alternative which is proposed by the defendant, which is copying at a commercial rate. I was informed from the Bar table that the latter would result in a cost of about $850, although again, in the correspondence before the Court, there are references to lower rates.
4 I consider that I have power to make directions about this issue, particularly under Rule 34, which empowers the Court to make directions that are conducive to the effective, complete, prompt and economical determination of the proceeding. In exercising power under the Rules, Rule 1.14 requires the Court to endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined, and the Court may give any direction on condition to impose any terms or conditions it thinks fit.
5 The introductory words of the Scale of Costs state that “the Judge, Registrar or other taxing officer of the Court shall have full discretion to allow any fee, cost or disbursements in full or in part”.
6 The defendant’s application is supported by an affidavit by its solicitor, Steven John Harris, which exhibits correspondence and raises the issue of what were the reasonable costs of photocopying.
7 The plaintiff’s claim is for $113,067.82 for goods sold and delivered to the defendant which operates retail outlets for the sale of paint and related products in Ballarat and Ararat. The Schedule to the Statement of Claim lists the various invoices and other documents which include credit notes and journal entries which support the plaintiff’s claim. As I understand it, the documents of which the defendant seeks copies include these journals, invoices and credit notes. The documents are said to be needed as part of the preparation of the defence. It was put on behalf of the plaintiff that there had been no request to inspect them previously, but it is not shown to be inappropriate for the defendant to seek copies of them at this stage. Thus the issue as to reasonable photocopying charges arises.
8 The Court of Appeal decision in Anglo-Italian Holdings Pty Ltd v Varallo [1] was referred to by both parties and gives guidance on this issue. Hollingworth AJA, with whose judgment the other members of the Court agreed, stated:
“No doubt the high scale rate reflects at least in part the overhead costs rate should not be approached in a formulaic manner.”[3]
and attendance costs involved in copying documents. However, in the
case of multiple copying, at some point it will be more economical for the
documents to be collated and delivered to a commercial copier.[2]
. . .What will be reasonable or proper will obviously vary from case to case.[1] (2005) 12 VR 257
[3] Supra at 264
[2] supra at 263
9 Her Honour listed seven matters of possible relevance to a decision on this issue. I will address each of them.
10 First was the nature of the documents. In this case, they appear to be commercial documents which support the plaintiff’s business. One imagines that the plaintiff has many thousands, if not hundreds of thousands of such documents, either in hard copy or electronically stored.
11 The second and third considerations were the size and number of pages. Here there are 4,502 pages, one assumes in a generally standard format.
12 The fourth consideration was how quickly copying is required. There is nothing particularly urgent in this case save that the defendant wants to examine the documents before filing its defence.
13 The next matter was for whom the copies are to be made. In this case, it is for a party to the litigation.
14 The next matter which is of some importance is do the documents have any particular commercial or personal sensitivity? They are essential for the plaintiff’s case and if any of them went astray the case would be, to that extent, weakened. They need to be copied securely and such mundane matters as ensuring that staples are properly maintained in the documents and that they are kept in their paginated order are of importance. However, commercial sensitivity in a general sense, as distinct from the more narrow sense of documents that contain some commercially confidential information, is a not a reason by itself to refrain from requiring that documents be commercially copied. If it were, the Court would rarely be able to exercise the discretion to fix a commercial rate for copying documents in commercial litigation.
15 However, it is obviously important that the person or business who copies the documents is trusted by the plaintiff to copy the documents in a responsible way.
16 The next matter is also of importance. The quantum in dispute is some $113,000. The copying bills, if carried out at the Scale rate, will attract costs and charges of between $5,000 and $10,000. The application of the Scale of Costs for matters such as copying is generally not to be seen to be the occasion for achieving excessive profit.
17 Weighing up those factors, I do consider that this is a case where it is appropriate for the Court to fix the reasonable costs of photocopying at a commercial rate. I take into account in particular the quantum of the claim and the type of documents which appear to be standard, although commercial documents.
18 I am not to be taken as deciding anything other than what is the appropriate costs in this case.
19 The lowest quotation referred to in the correspondence is not necessarily appropriate. I accept that the plaintiff has to be satisfied within reasonable limits that the person or business that will carry out the copying will do so responsibly.
20 I will hear the parties further about the quantum of an appropriate commercial copying rate.
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