Oxford Scientific Pty Ltd v Terreiro [2020] NSWSC 1315

Supreme Court New South Wales

Medium Neutral Citation: Oxford Scientific Pty Ltd v Terreiro [2020] NSWSC 1315 Hearing dates: Written submissions 21 August, 2 and 4 September 2020 Date of orders: 28 September 2020 Decision date: 28 September 2020 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Plaintiffs' costs of the hearings on 27 July and 4 August 2020 to be the plaintiffs' costs in the cause Catchwords: COSTS – interlocutory applications – no issue of principle Category: Costs Parties: Oxford Scientific Pty Ltd ACN 003759322 Medilink Pty Limited ACN 050540700

Michael (Mike) Erwin Terreiro ANZ-Medical Pty Ltd ACN 152345072 Representation: Counsel: T Brennan (Plaintiffs) A G Rogers (Defendants)

Solicitors: Kennedys (Plaintiffs) McAuley Hawach Lawyers (Defendants) File Number(s): 2019/00263171 Publication restriction: No

The Court orders: 1. The plaintiffs' costs of the hearings on 27 July and 4 August 2020 to be the plaintiffs' costs in the cause.

Judgment

Summary 1. The plaintiffs ("Oxford Scientific") sue the defendants, being their former employee Mr Michael Terreiro and his related company, for breach of confidence and copyright. 2. In August 2019, Rein J made orders requiring computers and related storage devices of the defendants to be delivered up to an independent expert and forensically copied. The parties were required to agree a regime under which the plaintiffs could review the electronic material that had been copied by the independent expert. 3. The issue which I was ultimately called upon to resolve was the defendants' claim that, while the documents could be reviewed by Oxford Scientific's lawyers, a number of those documents should not be shown to Oxford Scientific's principal, Mr Larry Nowland. The Court ultimately concluded that all but two of the documents (with some having pricing information redacted) could be shown to Mr Nowland. 4. The working out of that process involved several hearings before me. This judgment resolves the only remaining issue in this phase of the dispute, which is who should pay the costs of the final two interlocutory hearings on 27 July and 4 August 2020. In reliance upon a letter inviting the defendants to "reconsider" their resistance to Mr Nowland being shown a number of the documents, Oxford Scientific submit that they should have their costs of those two hearings on the indemnity basis, assessable forthwith. Alternatively, they submit that the costs of those hearings should be their costs in the cause. 5. The defendants submit that the costs should be in the cause or, alternatively, be the plaintiffs' costs in the cause. The defendants resist any order for the costs to be assessable forthwith. 6. The Court is satisfied that, to the extent it might be relevant, the defendants did "reconsider" their position by reducing the number of documents which they submitted Mr Nowland should not be permitted to see. With two exceptions, they were completely unsuccessful in their attempt to prevent those remaining documents being shown to Mr Nowland. 7. Nevertheless, the Court is satisfied that the defendants' approach to the matter was not of a kind that would warrant making an indemnity costs order. Nor should the plaintiffs have their costs assessed forthwith in circumstances where their entitlement to any of the documents will turn upon the ultimate outcome of the proceedings. Taking these matters into account, but recognising that Oxford Scientific had almost complete success, the Court has concluded that the plaintiffs' costs of the hearings on 27 July and 4 August 2020 should be the plaintiffs' costs in the cause. 8. When the matter came on for hearing before me on 27 July and 4 August 2020, Mr T Brennan of Counsel appeared for Oxford Scientific and Mr A G Rogers of Counsel appeared for the defendants. The parties agreed that the costs of those hearings should be determined on the papers and those same counsel prepared their respective clients' written submissions.