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 the day before the return of the application, and then only to a limited extent. At the hearing of the application counsel for the respondents did not-contest that the respondents should make better discovery although the ambit of that additional discovery was a matter that was debated to a limited extent. -2- The question whether the respondents should pay the costs of the application does not raise any question of principle. The normal rule, which is well known, is that a successful party is, in the absence of special circumstances, entitled to recover the costs of his or her successful application. Here Mr Foody was successful in obtaining various of the orders that he sought and those that he did not obtain were not pressed at the hearing. It is true that Mr Foody had given notice to the respondents that he was seeking much more by way of additional discovery than was ultimately allowed. However, until the hearing, the respondents had not conceded that Mr Foody was entitled to any of the orders that were made and it is likely that if some concession had been forthcoming before Mr Foody was required to brief counsel for the hearing, the hearing would not have proceeded. In those circumstances it is only proper that Mr Foody should obtain his costs of the application. J certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein Associate: la aa No \ Dated: 15 September 1998 Counsel for the Applicant: DH Denton Solicitor for the Applicant: Fetter Gdanski Counsel for the Respondents: B Wyatt Solicitor for the Respondents: Rigby Cooke Date of Hearing: 4 September 1998 Date of Judgment: 4 September 1998