Industrial Relations Commission of New South Wales in Court Session CITATION : Sheffield v Brambles Australia Limited and Anor [2002] NSWIRComm 166 APPLICANT Lindsay John Sheffield FIRST RESPONDENT Brambles Australia Limited PARTIES : SECOND RESPONDENT Brambles Industries Limited APPLICANT ON MOTION RE COSTS ON SUMMONS Chubb Security Services Limited RESPONDENT ON MOTION RE COSTS ON SUMMONS Lindsay John Sheffield FILE NUMBER: IRC4136 of 1999 CORAM: Peterson J CATCHWORDS : Costs issues - proceedings under s106 - claim for expense or loss incurred by non-party in answering summons to produce documents - Claim by respondent for costs based on rejection by applicant of an offer of compromise - whether final order more or less advantageous to applicant than offer of compromise - Claim for costs by respondent on issue involving legal professional privilege after call by counsel for applicant for legal advice rejected. Industrial Relations Act 1996 - s106 LEGISLATION CITED : Industrial Relations Regulations - Reg.20(3) Industrial Relations Commission Rules - rr168 216 Supreme Court Rules - Part 52A r22 Fuelxpress Ltd v L M Ericsson Pty Limited (1987) 75 ALR 284 Danieletto v Khera (1995) 35 NSWLR 684 CASES CITED : Rosser v Maritime Services Board of NSW (No. 3) - Young J, 25 November 1997, unreported Bailey v Meredith, 11 May 2001 NSWCA 149 Maitland Hospital v Fisher (1992) 29 NSWLR 721 Fowdh v Fowdh and Anor, NSWCA, 4 November 1993, unreported HEARING DATES: 03/23/2001; 06/14/2002 DATE OF JUDGMENT: 07/19/2002 APPLICANT Mr R Reitano of counsel SOLICITOR Abbott Tout SYDNEY FIRST AND SECOND RESPONDENT Mr H J Dixon SC SOLICITOR Corrs Chambers Westgarth SYDNEY. LEGAL REPRESENTATIVES: APPLICANT ON MOTION RE COSTS ON SUMMONS Mr C B W Bavin, solicitor SOLICITOR Hunt and Hunt SYDNEY. RESPONDENT ON MOTION RE COSTS ON SUMMONS Mr A Moses of counsel SOLICITOR Abbott Tout SYDNEY JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 19 JULY 2002 Matter No.IRC4136 of 1999 LINDSAY JOHN SHEFFIELD v BRAMBLES AUSTRALIA LIMITED AND ANOR. Application under s106 of the Industrial Relations Act 1996. JUDGMENT RE COSTS 1 Three claims for orders for costs are required to be dealt with in this judgment. The claims arise in the context of s106 proceedings, the finalisation of which, subject to costs issues, was effected by judgments given on the substantive merits of the case on 18 January 2002 and by supplementary judgment given on 24 May 2002 dealing with the quantification of compensation. 2 The three costs issues are raised as follows: A. Chubb Security Services Limited ("Chubb") was the subject of a summons to produce documents served upon Chubb by the applicant. Chubb was not a party to the proceedings but was the successor to the business of the first respondent, Brambles Australia Limited. Chubb seeks the costs and expense of compliance with the summons. B. The apportionment of costs as between the principal litigants in the light of the degree of success of the applicant in the substantive proceedings but taking into account an offer of compromise ("offer") made by the first respondent on 5 September 2000, approximately two days after the failure of conciliation pursuant to s109 of the Act. C. A claim by the first respondent and also the second respondent (Brambles Industries Limited) for costs in relation to an interlocutory judgment given in favour of the respondents on a claim for legal professional privilege in relation to a legal advice called for by the applicant. I will deal with these claims seriatim. A - Costs of Chubb 3 Chubb was served with a summons for production issued at the request of the applicant and seeks to recover the expense or loss which it claims to have suffered as a result of being required to comply with the summons. 4 The costs sought by Chubb relate to photocopying expenses, the cost of the provision of staff to collate the documents and legal costs incurred in relation to seeking advice regarding commercially sensitive information. The claim totals $6,705. 5 The evidence of Mr C.B.W. Bavin, the solicitor acting for Chubb in the matter and providing the relevant advice, establishes that the summons served on Chubb was in substantially the same form and requested substantially the same documents as summonses served on the two respondents in the proceedings. 6 On the return of the summons before the Commission on 4 December 2000 the summons served on Chubb was stood over to a date to be fixed to allow time for the respondents to answer the summonses which had been served on them and for the applicant to identify any documents not there produced which were also the subject of the summons served on Chubb. This had the practical effect of setting aside the majority of the paragraphs of the summons. 7 Subsequently, the solicitors for the applicant by correspondence requested substantially less than the totality of the documents sought by the initial Chubb summons. 8 Regulation 20(3) of the Industrial Relations (General Regulations) 1996 provides: If the person required to comply with the summons is not a party and, in order to comply with the summons, incurs expense or loss substantially exceeding any amount paid under subclause (2), the Commission may order the party who requested the issue of the summons to pay to the person an amount sufficient to make good the expense or loss. 9 The evidence also satisfies me that the resort by Chubb to its legal advisers with respect to the summons was reasonable in the circumstances having regard to the commercially sensitive nature of the information. A confidentiality clause contained in an Agreement for Sale of the Brambles Security Services Division to a member of the Chubb Group of Companies required the obtaining of the consent of Brambles to the production of documents. Strictly, the position is as was submitted for the applicant that the order of the court ought be first complied with by producing the documents subject to a resolution of the issue of confidentiality. Of course, that would involve a further process at the expense of the parties which at least was avoided by the approach adopted. 10 The judgment of the Federal Court in Fuelxpress Ltd v L M Ericsson Pty Limited 1987 75 ALR 284 is an example of the recognition of reasonableness where it was necessary to seek legal advice regarding commercially sensitive and legal professional privilege matters in the course of seeking to comply with a summons. 11 An unusual aspect of this case is that Chubb, as the acquirer of the relevant business of the first respondent in which the applicant had been engaged, had acquired the records of the first respondent. While the applicant had copies of those documents which were the subject of the summons during the course of his employment, they were not his documents and at the time of the issue of the summons were in the possession either of the first respondent or Chubb. It was thus necessary that a summons be issued to Chubb but it is difficult to accept that it should have been in the same extensive form as that served upon the first respondent. That approach had the effect of imposing additional burdens on Chubb, involving legal expense which I think cannot be quibbled at. The volume of documents involved was substantial, 4,366 pages, the cost of the production of which has been claimed at the relatively low rate of 25 cents. 12 I consider that Chubb has made out a case in conformity with the usual principles (see Danieletto v Khera (1995) 35 NSWLR 684) to justify an order in its favour pursuant to Reg.20(3). The regulation provides for an order of "an amount sufficient to make good the expense or loss". Chubb contends that $6,705 is the appropriate sum. While I am inclined to think that such an amount is disproportionate and excessive, I consider that the appropriate order is that the applicant pay to Chubb an amount which is sufficient to compensate it for the expense or loss which it reasonably incurred or lost in complying with the summons issued by the applicant and served on it and that the amount shall be as agreed or assessed. B - Costs in the Main Proceedings 13 The parties dispute the costs order/s which ought apply. The applicant seeks an order for costs generally on a party/party basis. The respondents seek an order that would have the applicant pay their costs on a party/party basis for the period 7 September 2000 up to and including 5 October 2001, and otherwise the respondents to pay the applicant's costs. Prima facie, the applicant will succeed in his pursuit of an order for costs if the value of the offer made by the first respondent is lower than the value of the order achieved by the applicant in the proceedings. Similarly, the respondent will succeed if it can be shown that the offer was of a greater value than the order achieved by the applicant. 14 The summons for relief identified in Part B, Claim, seven identifiable matters, some of which went to variations of the contract or arrangement and others of which went to monetary compensation, as described in Part D, and also interest and costs. The ultimate paragraph in Part B of the summons sought "such further or other order or orders as to the Commission seems just in the circumstances of the case". 15 Of relevance for present purposes was the particular claim for an amount of $97,220.00 for a lost benefit of his employment contract namely: "(i) the loss of the opportunity to gain, on retirement at age 55 a superannuation benefit that will not now flow to him unless he is successful in obtaining suitable alternative employment. The estimated loss benefit on the basis that no such alternative employment is found is $97,220.00." 16 The orders made in the judgment of 24 May 2002 included an order that the respondents were to pay the applicant the sum of $419,966.80 with interest to run on that amount at the Supreme Court rate from the date of commencement of the proceedings, 3 August 1999, until 24 May 2002. 17 The sum of $419,966.80 was made up as follows: In respect of share options $221,440.80 Loss on superannuation $ 31,704.80 Pay in lieu of notice including relocation allowance $196,025.00 Relocation expenses $ 45,796.20 Sub-total $494.966.80 Less Notice Paid $ 75,000.00 Total $419,966.80 18 During the proceedings on the costs issue the respondents exposed an error in the judgment of 24 May which under-estimated the amount necessary to be awarded for relocation expenses. The sum of $45,796.20 should be increased by a further sum of $10,113.80. This error arose from a miscalculation in the submissions which was perpetuated in the judgment. It is now agreed by the parties that the additional sum should be added; I accord with that view and will so order. 19 It was also intimated in that judgment that in the absence of any other countervailing matter the usual order as to costs should apply, namely that costs would follow the event. Leave was extended to the parties to raise that matter if necessary. 20 In material tendered on the costs application, it was revealed that, on 6 September 2000, the respondents conveyed to the applicant an offer in the following terms: In accordance with Part 23 of the Industrial Relations Commission Rules 1996, the Respondents offer to settle these proceedings on the following basis: 1. The Respondents will pay to the Applicant $455,000 exclusive of legal costs within 28 days after acceptance of this offer. 2. The Applicant will, with the Respondents' consent, discontinue these proceedings. 3. This offer will be open for acceptance for 28 days from the date it is made. 21 On any view of the matter the total sum awarded ($419,966.80) as identified in paragraph 7 but now corrected to $430,080.61 with interest from 3 August 1999 up to 6 September 2000, the date of the offer, amounts to $464,897.75 as against the original sum awarded or $476,093.60 as corrected. To that sum was to be added costs as agreed or assessed. It follows that the respondents must fail on their application for costs unless some factors taken into account in formulating the order, as set out in the table in paragraph 7 hereof, are able to be discounted for the purposes of the comparison with the offer of compromise. The respondents have focussed in their argument upon the subject matter of superannuation and relocation expenses/allowance. 22 Part 23 of the Rules provides for the making of an offer and imposes particular requirements with which an offer must conform in order to be an offer to which the Rules relate. The significance of that compliance is that an offeror is entitled to the rights conferred by the Rules only where the offer is in conformity with the relevant rules. There is no reference in Part 23 to costs, which are dealt with in Part 27. 23 The relevant rules for the purposes of this judgment are r168 and r216 which are in the following terms: 168 Time for making or accepting offer 168(1) An offer may be made at any time before the time prescribed by subrule (8) in respect of the claim to which it relates. (2) A party may make more than one offer. (3) An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed must not be less than 28 days after it is made. (4) An offeree must, within 3 days after service, serve a written acknowledgment of receipt on the offeror. (5) An offeree may accept the offer by serving notice of acceptance in writing on the offeror before: (a) the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made; or (b) the time prescribed by subrule (8) in respect of the claim to which the offer relates, whichever is sooner. (6) An offer must not be withdrawn during the time it is open to be accepted, unless the Commission otherwise orders. (7) An offer is open to be accepted within the period referred to in subrule (5) notwithstanding that during that period the party to whom the offer (the "first offer") is made makes an offer (the "second offer") to the party who made the first offer whether or not the second offer is made in accordance with this Part. (8) The time prescribed for the purposes of subrules (1) and (5) and Rule 216(3) is after the Commission or Registrar gives a decision or begins to give reasons for a judgment (except an interlocutory judgment). (9) Where an offer is accepted under this Rule, a party to the compromise may request the Commission or Registrar to order in accordance with the compromise. 216 Offer of Compromise 216(1) Upon the making of an order under Rule 168(9), a party entitled to costs may, unless the Commission otherwise orders, have those costs assessed up to and including the day the offer was accepted. (2) If a notice of offer contains a term which purports to negative or limit the entitlement to costs, that term shall, unless the Commission otherwise orders, be of no effect for any purpose under Part 23 or this Rule. (3) Subrules (4)-(7) apply to an offer which has not been accepted at the time prescribed by Rule 168(8). (4) Where an offer is made by an applicant and not accepted by the respondent, and the applicant obtains an order on the claim to which the offer relates no less favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to costs incurred before and on that day, assessed on a party and party basis. (5) For the purpose of subrule (4), where the offer was made on the first or later day of the hearing of the proceedings, then, unless the Commission otherwise orders, the applicant shall be entitled to costs in respect of the claim from 11 am on the day following the day on which the offer was made, assessed on an indemnity basis, in addition to costs incurred before that time, assessed on a party and party basis. (6) Where an offer is made by a respondent and not accepted by the applicant, and the applicant obtains an order on the claim to which the offer relates not more favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the respondent shall be entitled to an order against the applicant for costs in respect of the claim thereafter, assessed on a party and party basis. (7) For the purpose of subrule (6), where the offer was made on the first or a later day of the hearing of the proceedings, then, unless the Commission otherwise orders, the applicant shall be entitled to costs in respect of the claim up to 11am on the day following the day on which the offer was made, assessed on a party and party basis, and the respondent shall be entitled to costs in respect of the claim thereafter, assessed on a party and party basis. (8) Where an applicant obtains an order for the payment of a remuneration, compensation or damages and: (a) the amount payable under the order includes interest or damages in the nature of interest; or (b) by or under any Act the Commission awards the applicant interest or damages in the nature of interest in respect of the amount. Then, for the purpose of determining the consequences as to costs referred to in subrules (4) and (6), the Commission shall disregard so much of the interest as relates to the period after the day the offer was made. (9) For the purpose only of subrule (8), the Commission may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms. (10) Subrules (4) and (6) shall not apply unless the Commission is satisfied by the party making the offer that the party was at all material times willing and able to carry out what the party offered. 24 One aspect of the argument concerned the phrase contained in paragraph 1 of the offer "exclusive of legal costs". There is a line of authority (See for example Rosser v Maritime Services Board of NSW (No. 3) - Young J, 25 November 1997, unreported) to the effect that the offer would have failed had the expression used been "inclusive of legal costs". Such a qualification makes it impossible subsequently to ascertain (by an attempted fragmentation of the amount) just what the value of the offer was on the substance of the claim. Here, of course, the offer does not face that difficulty, but another to the effect that it conveys an intention not to pay costs. 25 The Argument on Costs 26 The respondents submitted that the offer made to the applicant on or about 6 September 2000 was an offer made in accordance with Part 23 of the Commission's Rules. 27 In the course of the respondents' submissions a series of calculations were advanced which demonstrated that the value of the money order awarded to the applicant by the Commission, taking into account interest, is maximised at $440,982.76. However, a number of other calculations were advanced in support of an argument that alternative lower sums should be regarded as the value of the judgment to be compared with the offer of $455,000. This argument depended upon the meaning of r216(6) of the Commission's Rules which is in the following terms: 216(6) Where an offer is made by a respondent and not accepted by the applicant, and the applicant obtains an order on the claim to which the offer relates not more favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the respondent shall be entitled to an order against the applicant for costs in respect of the claim thereafter, assessed on a party and party basis. 28 The phrase in the first sentence of that subrule, "an order on the claim to which the offer relates not more favourable . . ." is significant in this context for the reason that it was submitted by the respondents that in comparing the money offer it must correspond with the claim. That is to say, because the applicant substituted a new claim on the topic of superannuation subsequent to the making of the offer, no figure ought be taken into account for the purposes of superannuation in assessing the value of the offer. This deduction leads to a figure of $388,262 having been awarded plus interest, which brings that sum to $429,780, if interest be limited to the period from the commencement of the proceedings (3 August 1999) up to and including the date of the offer (6 September 2000). 29 If the additional payment on account of relocation expenses and allowance (that amount omitted in error) of $10,113.81 is included in the calculation, again maintaining the exclusion of any element for superannuation, the figures become $398,375.81 plus $42,606.95 on account of interest giving a total sum of $440.982.76. On the other hand, if superannuation is to be included but the tax adjustment on relocation expenses is excluded, the figures would be $410,178.00 plus interest for the relevant period giving a total of $454,000.00, $1,000.00 below the sum of $455,000.00 offered in September 2000. 30 The applicant's submissions on costs were that: 1. The effect of the offer was to offer the applicant $455,000 and no more. 2. The effect of r216(1) is not to confer a right to costs. Rule 216(1) depends upon an order having been made under r168(9) in accordance with the compromise but upon the making of such an order, costs may be assessed only by a party "entitled to costs". This contrasts with Part 52A, Rule 22(1) of the Supreme Court Rules (which are largely replicated in the District Court Rules) as follows: Offer of compromise 22(1) Upon the acceptance of an offer of compromise in accordance with Part 22 rule 3(5), the defendant shall, unless the Court otherwise orders, pay the costs in respect of the claim by the plaintiff against the defendant up to and including the day the offer was accepted. Therefore, unless the offer includes an offer to pay costs so as to create an entitlement, there is no right to costs on the acceptance of an offer. 3. The applicant would have been disadvantaged by accepting the offer. The relative positions may be assessed simply by comparing the value of the offer as against the total sum awarded on all counts plus interest, the amount of which exceeds the value of the offer. Conclusions 31 The first question for consideration concerns the wording and effect of the offer. I conclude that the offer was an offer of compromise within the meaning of Part 23. It conformed with the relevant requirements and did not fall foul of the problem which would have arisen had it expressed itself as an offer "inclusive of costs". The words "exclusive of costs" in my opinion are not synonymous with "plus costs", but are ambiguous. They may mean that costs are intended to be paid, they may also mean that they are not intended to be paid. Thus the words could give no right to the applicant to be paid costs. If the words were intended to, as it were, reserve the question of costs, it would be necessary to have resort to the Commission's Rules to ascertain an entitlement to costs. In that regard, I think the applicant's submissions are correct: the Rules provide no entitlement to costs but speak through r216(1)only of a party who is entitled to costs. The contrast with the express conferral of a right to costs by the Rules of the Supreme Court is stark. The reason for that difference is not readily apparent. Mr Reitano suggested it may relate to the different remedies available under s106 concerning voidance or variation of contracts etc. Whether that is so or not, the differences must, of course, be accepted and applied according to the terms of the rule. 32 I turn to consideration of the argument concerning the removal of the superannuation component of the original claim for the purpose of the assessment of the comparative value of the offer. The basis of the argument, as I understand it, is that the original superannuation claim was one the veracity of which the respondents were able to assess in making their offer. That claim was not pressed and accordingly the offer must be considered as though it paid no regard to the superannuation claim, presumably on the basis that the claim was without merit. 33 The argument depends upon the use in r216(6) of the words "the applicant obtains an order on the claim to which the offer relates not more favourable than the terms of the offer . . . " (my emphasis). This phrasing is identical to that which appears in Part 52A, Costs, r22(6) of the Supreme Court Rules. I was not referred to any authority which considers the meaning of that phrase. On one view of it an attempt to assess the comparative value of a judgment in favour of the applicant with an offer made prior to an amendment to the form of claim, makes it impossible to identify a true basis for the comparison. 34 In the present case, to remove the element of superannuation from the claim and compare the money value of the offer of $455,000 which was made in the face of that claim, would seem to me to be a fiction. It assumes that the claim originally made on account of superannuation was without merit and that the offer must be understood to have reflected that view of that element of the claim. However, that claim has not been adjudicated upon, the need therefore being avoided by the substitution of a different superannuation claim in respect of which the applicant achieved a degree of success. In those circumstances, a like with like comparison would suggest that the value of the offer was less than the value of the claim as it was ultimately pressed. 35 The rationale underpinning the rule in favour of a respondent where a higher offer of compromise has not been achieved as the result of the litigation has been discussed frequently in the cases. A recent exposition is the judgment of Stein JA with whom Beazley and Giles JJA agreed in Bailey v Meredith in the New South Wales Court of Appeal, 11 May 2001 NSWCA 149. There Stein JA collected together a number of the leading authorities on the point including the judgment of the Court of Appeal (Kirby P, Mahoney and Samuels JJA) in Maitland Hospital v Fisher (1992) 29 NSWLR 721 where this was said by the court at 725: Litigation is inescapably chancy. The purpose of the rule is to put a premium on realistic assessment of cases. It is not to demand perfect foresight which is denied even to the judges. That is why a discretion is retained under the rule, for the Court to order otherwise than as the rule provides. But the ordinary provision is expected to apply in the ordinary case. It has added a new duty to the functions of legal practitioners advising litigants. It is a duty which is both protective of the interests of litigants and of the public interests in the prompt and economical disposal of litigation. 36 It follows from the rules and the authorities in relation thereto that an order for costs by a court involves a discretion which is to be exercised according to the purposes of the applicable rule. In the present context, the rule will give a prima facie right, as I have earlier noted, according to the comparative values of the offer as against the judgment. That will be subject to the operation, in the present case, of the exception in r216(6) referred to by the words "unless the Commission otherwise orders". 37 In Bailey v Meredith it was observed that those words conveyed what is probably a broader discretion in the court to depart from the rule than that which operates under the District Court Rules where that phrase has been substituted with the phrase "unless the Court in an exceptional case and for the avoidance of substantial injustice otherwise orders". Here, on the view I take of the relevant comparison, no question arises which would call for the exercise of that particular discretion. 38 While no authorities appear to discuss the concept of the offer and the claim to which it relates, in the New South Wales Court of Appeal (Kirby ACJ, Mahoney AP, and Meagher JA, 4 November 1993, unreported), in Fowdh v Fowdh and Anor dealt with a purported reference to it of an appeal from the Master who had exercised discretion under the phrase "unless the court otherwise orders". In that matter the defendant had made an offer of compromise in the sum of $165,000 plus costs. The plaintiff put an offer at $275,000 plus costs. Both offers were rejected and ultimately the plaintiff was awarded $288,500 plus costs. In those circumstances, the Supreme Court Rules gave the plaintiff a right to indemnity costs (that is actual costs as between solicitor and client) from the date of the plaintiff's offer. The Master ordered that the plaintiff receive only party-party costs because the success at trial occurred on a case which had changed significantly after the date of the offer. 39 The facts of that case are of course different and the judgment is strictly distinguishable from the circumstances now before me. However, leaving aside the different position with respect to offers, that case has some similarity with the present in the sense that the applicant succeeded in achieving a greater sum on a changed case with respect to the basis for the claim for superannuation. Whilst the issue has not been argued it may be that an approach such as that in Fowdh might warrant the court making some other order in favour of the applicant on costs if my view of the respondents' proposals with respect to superannuation were incorrect. 40 I think the correct view with respect to relating an offer to the claim is to treat the word "claim" as having, as was submitted for the applicant, a synonymity with a cause of action or proceeding. 41 In all of the circumstances, I consider that the proper view of the offer as against the order is that the order was of a greater value than the offer and accordingly the applicant is entitled to an order for costs on a party/party basis. I have come to this conclusion by illustrating the problem by reference essentially to superannuation but what I have said in that regard extends equally to the relocation expenses adjustment resulting from a different approach on that claim taken during the case. C - Costs re Pursuit of Access to Legal Advice 42 The circumstances in which this issue arose are dealt with by my interlocutory judgment of 27 September 2001 in which I declined to grant access to the applicant to a legal advice which was placed before the Board of Directors of the second respondent in considering the applicant's request for the early exercise of options. 43 Senior counsel for the applicant had on the first day of the hearing indicated he would not press for production of the legal advice. Later in the proceedings, during the course of cross-examination of the company secretary, Mr Corben, the call was renewed once it became clear from the cross-examination that the advice was provided to the Board Members with the Board papers. 44 The issue was isolated in the proceedings and dealt with by way of written submissions and interlocutory judgment. It involved the separate issue in which the respondents were successful. It did not involve a question which seems to me to properly fall for treatment as a cost in the cause but rather one in which the respondents are entitled to an order for costs, as agreed or assessed on that issue. 45 The orders are: (i) The applicant to pay Chubb Security Services Limited an amount which is sufficient to compensate it for the expense or loss which it reasonably incurred or lost in complying with the summons issued by the applicant and served on it, as agreed or assessed. (ii) The respondents to pay the applicant his costs of the proceedings on a party-party basis as agreed or assessed. (iii) The applicant to pay the respondents their costs on a party-party basis as agreed or assessed on the issue of privilege. (iv) That the sum ordered to be paid by the judgment dated 24 May 2002 be increased to $430,080.60 plus interest, to be payable by the respondents on a joint and several basis. 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