ANDREW EMMETT FOODY V TIMOTHY HOREWOOD, EDWARD HORE and MUSASHI PTY LTD [1998] FCA 1821

FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE -— costs — whether special circumstances exist to displace the normal rule as to costs

VG 3123 of 1997 ANDREW EMMETT FOODY V TIMOTHY HOREWOOD, EDWARD HORE and MUSASHI PTY LTD

FINKELSTEIN J 4 SEPTEMBER 1998 MELBOURNE

NO QUESTION OF PRINCIPLE

"IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 3123 of 1997

BETWEEN: ANDREW EMMETT FOODY Applicant

AND: TIMOTHY HOREWOOD EDWARD HORE and MUSASHI PTY LTD Respondents

JUDGE: FINKELSTEIN J ' DATE.OF ORDER: 4 SEPTEMBER 98 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The respondents pay the applicant's costs of and incidental to the directions hearing heard on 1 December 1997.

2. The costs of and incidental to the directions hearing heard on 4 September 1998 be reserved.

Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules

NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 3123 of 1997

BETWEEN: ANDREW EMMETT FOODY Applicant

AND: TIMOTHY HOREWOOD EDWARD HORE MUSASHI PTY LTD Respondents

JUDGE: FINKELSTEIN J DATE: 4 SEPTEMBER 98 PLACE: MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR: Some time ago, upon the application of Mr Foody, I ordered the respondents to make further and better discovery of documents. I left outstanding the question whether the respondents should be ordered to pay the costs of the application. I did indicate that I was minded to make an order for costs against them. However, the parties wished to provide me with certain correspondence that had passed between the solicitors concerning the question of discovery so that I was in a

better position to deal with the issue of costs.

I have now been provided with an exchange of correspondence between the solicitors for the period beginning 1 October 1997 and ending on 27 November 1997. That correspondence shows that Mr Foody's solicitors made known to the respondents that it was being alleged that the respondents' discovery was "clearly inadequate" and the alleged deficiencies: in that discovery were identified. The correspondence also indicates that the respondents did not accept that their discovery was deficient until