Background
BPG Pty Ltd, trading as Entry Education, brought an application for preliminary discovery against the Real Estate Institute of New South Wales (REINSW). In the underlying preliminary-discovery decision, BPG’s application under r 7.23 of the Federal Court Rules 2011 (Cth) was dismissed.
However, BPG obtained limited substantive relief under r 7.22. REINSW was required to give discovery aimed at identifying the person or corporation responsible for communications listed in Schedule A to the earlier orders. Justice Lee initially expressed a provisional view that there should be no costs order because of that mixed result.
The Court’s Holding
Justice Lee revised that provisional view and ordered BPG to pay 50% of REINSW’s costs of the application, to be taxed if not agreed. REINSW’s request for 90% of its costs was excessive because BPG had obtained meaningful document access directed to its practical objective.
But BPG’s success under r 7.22 did not justify no order as to costs. The proceeding had been pursued much more broadly than the confined relief ultimately granted: BPG’s Competition and Consumer Act s 45 case and later Australian Consumer Law s 18 case failed, and required REINSW to incur substantial costs responding to allegations and discovery categories that did not contribute to the limited discovery order.
Key Takeaways
- Limited success in obtaining preliminary discovery can prevent the respondent from being treated as wholly successful on costs.
- Costs may nevertheless be apportioned where the applicant’s broader pleaded or proposed case fails.
- Applicants should identify and narrow the real issues early, consistently with the overarching purpose in Pt VB of the Federal Court of Australia Act 1976 (Cth).
Why It Matters
The decision illustrates the Federal Court’s practical approach to costs after mixed success. It gives weight both to substantive relief actually obtained and to costs wasted by an overly broad or unsuccessful formulation of the proceeding.
For parties seeking preliminary discovery, the case underscores that a narrow successful component will not necessarily shield an applicant from an adverse costs order where it advances unsuccessful allegations or excessive discovery requests.