Background
The plaintiffs and defendants brought competing interlocutory applications in proceedings concerning document production. The plaintiffs sought discovery across 87 categories of documents. The defendants sought to set aside a notice to produce issued by the plaintiffs, which requested 64 categories of documents.
In the principal judgment, the Court resolved the substantive disclosure disputes but reserved costs. The parties then made written submissions, each contending that it had substantially succeeded and that the other had caused unnecessary delay and expense.
The Court’s Holding
Bennett J made separate ordinary-basis costs orders for the two applications. On the discovery motion, the defendants were ordered to pay the plaintiffs’ costs. Although the plaintiffs’ success was not overwhelming and some categories required amendment, 59 discovery categories were ordered and the defendants had delayed for more than three months before providing an initial position on the proposed categories.
On the motion to set aside the notice to produce, the plaintiffs were ordered to pay the defendants’ costs. The Court held that the plaintiffs had been much less successful on that application and that many notice-to-produce categories improperly resembled broad discovery requests. The plaintiffs’ overlapping and insufficiently identified requests had increased the complexity and cost of the dispute.
Key Takeaways
- Costs on related interlocutory applications may be determined separately where their outcomes and procedural histories differ.
- A party’s delay in responding to proposed discovery can justify an adverse costs order, even where the discovery categories require refinement.
- A notice to produce cannot be used as a substitute for broad discovery; overlapping requests should be clearly identified and confined.
Why It Matters
The decision illustrates the NSW Supreme Court’s focus on the overriding purpose of just, quick and cheap resolution. Parties must actively narrow disclosure disputes, respond promptly, and select the correct procedural mechanism for the documents sought.
Success is assessed substantively, not simply by counting categories. Conduct that unnecessarily duplicates document-production processes can alter the usual costs outcome.