Federal Court of Australia Brown v Deloitte Touche Tohmatsu (A Partnership) (No 3) [2021] FCA 581 File number: NSD 796 of 2020 Judgment of: STEWART J Date of judgment: 26 May 2021 Catchwords: COSTS – application for discovery – notice to produce – subpoenas Cases cited: Brown v Deloitte Touche Tohmatsu (A Partnership) (No 2) [2021] FCA 425 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 6 Date of hearing: 26 May 2021 Counsel for the Applicant: D Pritchard SC and N Wootton Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondents: J Darams Solicitor for the Respondents: Holding Redlich ORDERS NSD 796 of 2020 BETWEEN: COLIN BROWN Applicant AND: DELOITTE TOUCHE TOHMATSU (A PARTNERSHIP) (ABN 74 490 121 060) First Respondent RICHARD DEUTSCH Second Respondent order made by: STEWART J DATE OF ORDER: 26 May 2021 THE COURT ORDERS THAT: 1. The first respondent pay the costs of the applicant's interlocutory application for discovery and further and better particulars filed on 26 March 2021 and the first respondent's interlocutory application to set aside subpoenas filed on 26 March 2021. 2. The parties pay their own costs of the first respondent's interlocutory application to set aside a notice to produce filed on 26 March 2021. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth). REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) STEWART J: 1 There were three interlocutory applications before the Court on 23 April 2021. They were the applicant's application for discovery in eight categories and for further and better particulars, the first respondent's application to set aside a notice to produce, and the first respondent's application to set aside five subpoenas addressed to strangers to the litigation. See: Brown v Deloitte Touche Tohmatsu (A Partnership) (No 2) [2021] FCA 425. 2 The applicant was essentially successful in his application. True it is that the categories for discovery were limited in certain respects, and some of the particulars that had been sought were not ordered to be provided, but the essential success remains unaffected by those facts. 3 The first respondent accepts that it should pay the costs in relation to the further and better particulars but opposes an order that it pay the costs in relation to the discovery. It submits that those costs should be costs in the cause. It does so on the basis that the discovery dispute was simply in the ordinary preparation for trial and was something about which there was always going to have to be debate. But that is not correct. The discovery application was opposed absolutely as being premature and therefore it was required to be decided by me. On that application, the applicant was successful. He should therefore have his costs on his application, both in respect of discovery and further and better particulars. 4 The first respondent's application to set aside the notice to produce fell away, in effect, because I concluded that the applicant should have discovery orders. There was a dispute about whether the notice to produce was the appropriate or proper method to seek that discovery which then did not have to be decided by me. There was thus no decision on the dispute and it remains undecided who was right and who was wrong. In my view, the fairest outcome is therefore that there be an order that each party bear its own costs on the application to set aside the notice to produce. 5 The first respondent's application to set aside the subpoenas was dismissed. The first respondent accepts that the applicant should have his costs on that application. 6 I will make orders accordingly. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate: Dated: 31 May 2021