Brook v Lucrf Pty Ltd [1999] ACTSC 111 (22 October 1999)

Last Updated: 26 October 1999

Brook v LUCRF Pty Ltd [1999] ACTSC 111 (22 October 1999)

CATCHWORDS

COSTS - Application for preliminary discovery - Not appropriate that costs follow the event - No cause of action at this stage - Respondent not yet a party to any action - Costs order against respondent should not be made at this stage - No issue of principle.

No. SC 743 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: 22 October 1999

IN THE SUPREME COURT OF THE )

) No. SC 743 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SARAH BROOK

Plaintiff

AND: LUCRF PTY LTD

(ACN 005 502 090)

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 22 October 1999

THE COURT ORDERS THAT:

1. The costs of this application abide any order made in subsequent proceedings on any cause of action arising from the release of the documents.

1. This matter came before me on 15 October by way of Notice of Motion dated 27 September 1999 in which the applicant sought preliminary discovery of certain documents from the respondent pursuant to Order 34A. It was announced that the respondent agreed to provide the applicant with the documents the subject of the application, and the matter proceeded as an argument in respect of costs.

2. The application arose as a consequence of the unfortunate death of Mr Corey Reinicke. The applicant states that she was the de facto partner of the deceased, and made application to the respondent, the trustee of the Labour Union Co Operative Retirement Fund in respect of the payment of a death benefit. The respondent considered the applicant's claim, and also a claim from the parents of the deceased. I was advised that a decision has recently been made which is adverse to the applicant's interests.

3. There was argument before me as to whether the applicant had been premature in issuing the Notice of Motion, as it was common ground that the decision had not been finally made at the time it was issued. Mr Anforth who appeared for the applicant referred me to authorities on the duties and responsibilities of superannuation trustees, and to a useful article he had published on the subject in the November 1998 issue of the ACT Law Society Journal, Ethos entitled Superannuation Incapacity Entitlements for Employees in the Private Sector.

4. The argument before me proceeded, from both counsel, on the basis that costs would "follow the event", and that, if I was of the view that discovery would have been ordered, the applicant should have her costs, and that if I was of the view that the application was premature, and would have been refused, the respondent would have their costs. With respect to the arguments put to me, this seems contrary to authority. It seems to me, having examined decisions of this Court on Order 34A, and the equivalent provision in the New South Wales and Victorian rules, that an order that costs follows the event is not the appropriate order here.

5. Order 34A, and its equivalents, creates a new right for a person to require the disclosure of documents from another party before any action has been commenced in the Court. It is a discretionary power, and it seems that, where an application is refused, the other party who has been unnecessarily been brought to court will usually have their costs ordered (Stewart v Millar [1979] 2 NSWLR 129, Taylor v Osborne [1973] 1 NSWLR 52). Where the court is minded to grant the application, however, it does not follow that the other party, who has not yet been made a party to any action, will be required to pay the costs of the party who successfully obtains an order for preliminary discovery.

6. While a court may be satisfied that the test in order 34A is made out, in that it is satisfied that an applicant has shown that

"...it is reasonable to believe that the applicant has, or may have, the right to obtain relief from a person whose description has been ascertained",

all this means is that the applicant has shown on the balance of probabilities that it may have a cause of action against the respondent. The purpose of the rule is to enable a prospective plaintiff to make a reasoned decision before commencing proceedings, and incurring the costs that flow from such a decision. A party who meets this test may well, on examining the documents, form the view that commencing proceedings may not be prudent. The respondent, who has not been found to have been in breach of any legal duty, only to be a person against whom a cause of action may lie, should not, it seems to me, suffer an adverse costs order at this point. In Mann v Carnell [1998] SCACT 45 Miles CJ ordered preliminary discovery of certain documents from a prospective defendant in a defamation action, but said (at para 28)

"...as far as the costs of this application are concerned, I order that they abide any order made in any subsequent proceedings on any cause of action alleged to have arisen out of the publication of the documents."

7. This order, which it seems to me is analogous to a costs in the cause order, save of course that in an application for preliminary discovery there is by definition not yet any cause of action between the parties, seems to me to be an appropriate in this case.

8. I am satisfied that the applicant properly brought this Notice of Motion, even though it was brought before a decision had been made. I am satisfied that it was appropriate for the applicant to seek to see the potential case that it had to meet in order to obtain an order favourable to her interests. Had the matter proceeded to a contest, I would likely have made an order, and so I would not have dismissed the Notice of Motion, and a costs order adverse to the applicant is thus not appropriate. The respondent has undertaken to provide the material sought, but it seems to me that the form of costs order utilised by the Chief Justice is the appropriate order, and I order that the costs of this application abide any order made in subsequent proceedings on any cause of action arising from the release of the documents.

I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 22 October 1999

Counsel for the Applicant: Mr A Anforth

Instructing Solicitors: Capital Lawyers

Counsel for the Respondent: Mr B Hatch

Instructing Solicitors: Pamela Coward & Associates

Dates of hearing: 15 October 1999

Date of judgment: 22 October 1999