Whithear v Australian Capital Territory (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Whithear v Australian Capital Territory (No 2)

Citation:

[2019] ACTSC 220

Hearing Date:

16 July 2019

DecisionDate:

19 August 2019

Before:

Crowe AJ

Decision:

See [19]

Catchwords:

COSTS – Where application for preliminary discovery previously determined – where the applicant was partially successful

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) s 68

Court Procedures Rules 2006 (ACT) r 651

Cases Cited:

Ashton & Ors v The Australian Capital Territory [2019] ACTSC 93

McFarlane (As Trustee for S McFarlane Superannuation Fund) v IOOF Holdings Limited (No 2) [2018] FCA 932
Minerva (Aust) Ltd v Suburban Land Agency [2018] ACTSC 103

Whithear v Australian Capital Territory [2019] ACTSC 195

Parties:

Mark Whithear (Applicant)

Australian Capital Territory (Respondent)

Representation:

Counsel

A Muller (Applicant)

V Thomas (Respondent)

Solicitors

Maliganis Edwards Johnson (Applicant)

ACT Government Solicitors (Respondent)

File Number:

SC 259 of 2019

Crowe AJ

1. On 30 July 2019 I delivered my decision on the Originating Application which had sought an order for production of documents under s 68 of the Civil Law (Wrongs) Act 2002 (ACT) (the Act), or alternatively, for preliminary discovery under r 651 of the Court Procedures Rules 2006 (ACT) (the Rules). These reasons should be understood in the context of my reasons for that decision: see Whithear v Australian Capital Territory [2019] ACTSC 195.

1. At the time of handing down my decision I stayed the proposed costs orders (Orders 2 and 3) to allow the parties to make written submissions on the issue.

The Applicant’s Submissions

1. The applicant points to the Court’s general discretion as to costs, and submits that the outcome here could be distinguished from that in Ashton & Ors v The Australian Capital Territory [2019] ACTSC 93 (Ashton) on the basis that the applicant had a relatively greater degree of success in the categories sought. The applicant relies on McWilliam AsJ’s comment at [80] in Ashton that neither party had been entirely successful and that the applicant had obtained what amounted to an indulgence.

1. It is argued that the orders I stayed may lead to a harsh outcome for the applicant in the event that the documents produced by the defendant dissuade him from commencing proceedings for damages. The applicant contends that if the discoverable documents had been produced at the outset by the respondent this would have negated the need for the Originating Application.

1. The applicant submits that the appropriate order is that costs be reserved. This is to avoid a situation where the applicant may be left with a substantial costs liability.

The Respondent’s Submissions

1. The respondent addressed the costs of the application and the costs of complying with the order for production separately.

1. In respect of the application, the respondent argues that a substantial part of the hearing involved addressing the applicability of s 68 of the Act, as to which the applicant was wholly unsuccessful. The respondent then takes issue with the suggestion that the…