OPSM v Taylor [2005] NSWSC 81

New South Wales Supreme Court

CITATION : OPSM v Taylor [2005] NSWSC 81

HEARING DATE(S) : 10, 11 February 2005

JUDGMENT DATE : 22 February 2005

JUDGMENT OF : McDougall J at 1

DECISION : See para [31] of judgment

CATCHWORDS : PRACTICE AND PROCEDURE - costs - costs of interlocutory application - where relief favoured the applicant although the claimed relief was not awarded - where parties eventually consented to existing interlocutory regime - whether actions of parties were reasonable - whether costs ought to be awarded to the applicant - whether costs ought to be costs in the proceedings or costs of the application - no question of principle

OPSM Pty Ltd (Plaintiff) PARTIES : Brigette Taylor (Defendant)

FILE NUMBER(S) : SC 6677/04

R F Margo SC/S B Loughnan (Plaintiff) COUNSEL : M S White (Defendant)

Norton White (Plaintiff) SOLICITORS : Diamond Peisah & Co (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

McDOUGALL J

22 February 2005

6677/04 OPSM PTY LTD v BRIGETTE TAYLOR

JUDGMENT ON COSTS 1 HIS HONOUR: An application for continued interlocutory relief, relating to the records of an optometrist's practice at Castle Hill and other matters, was resolved by consent on 10 February 2005; but only after evidence had been taken and submissions put. The resolution did not extend to the questions of costs. The parties agreed that they would put submissions on costs in writing and that I could decide the question of costs by reference to those submissions. Background 2 Interlocutory orders for access to the patient records were made by consent on 17 December 2004. The plaintiff (OPSM) had proposed that the regime continue until further order. The defendant (Ms Taylor) sought that it continue only up until 15 February 2005. OPSM accepted this limitation. The effect of the agreed regime was that Ms Taylor would keep "Patient Records" (a defined term) secure; that she would not supply them to anyone other than OPSM or any person supplying optometric services at the Castle Hill "Outlet" (another defined term); and that she would provide OPSM with copies of individual records on request. 3 The consent regime included, as well as the matters just referred to, an undertaking by Ms Taylor to comply with a restraint of trade provision set out in the relevant agreement between her and OPSM. That restraint provided in substance that Ms Taylor would not practise as an optometrist for a period of three years within an area bounded by a circle having a 5 km radius based on the "Outlet". It specified, in the alternative, a series of lesser restraints, diminished both by time and by area. 4 OPSM, or it may be the parties, sought expedition of the proceedings. They were listed before Campbell J in the expedition list on 4 February 2005. His Honour gave directions for the further conduct of the proceedings, but, apparently through pressure of business, could not deal with OPSM's application for extension of the interlocutory regime. It was apparently submitted for Ms Taylor that the existing regime was inconvenient for her because it required her to remain at her home (which is where she kept the relevant records) to answer OPSM's requests, and that this would interfere with the execution of her desire to recommence practise as an optometrist. It will be observed that, although the objection related only to the access to patient records, the effect of Ms Taylor's position was that she would cease to be bound also by her undertaking, referred to in the previous paragraph, to observe the terms of the restraint of trade provision. 5 Further negotiations between the parties did not resolve the matter. Accordingly, it was listed before the duty judge, and thereafter before me, on 10 February 2005. 6 In the negotiations between 7 and 10 February 2005, OPSM's lawyers proposed an alternative regime, the essence of which was that OPSM would keep all the records secure at the Castle Hill premises, and to use them, on certain conditions as to confidentiality, for the purposes of the optometrist's practice conducted from those premises. That regime also proposed a continuation of the existing position in relation to the restraint of trade. 7 Ms Taylor's position was that she wished to recommence practice, and that she required access to the records to enable her to provide her services to any former patient who might seek them. She suggested that she do so from OPSM's Castle Hill premises. This was unacceptable to OPSM. (The unacceptability of the proposal was clearly influenced by the proposition, earlier stated by Ms Taylor, that she might seek to work for a major competitor of OPSM's in the Castle Hill centre.) 8 Thus, whilst OPSM was prepared to make records available to Ms Taylor in certain circumstances (including, specifically, that she not practise as an optometrist within a 5 km radius of its premises at Castle Hill), it was not prepared to provide her with unrestricted access. 9 By the time the interlocutory application was listed before me, the parties' positions appeared to be entrenched. OPSM wanted something substantially different to the existing regime: because it wanted custody of the records itself. Ms Taylor wanted something different. 10 The regime propounded by Ms Taylor at the commencement of the hearing on 10 February 2005 was substantially different to the existing regime. She proposed that she would retain possession of the records, but that OPSM would not have access to them. She did however propose that if a patient should make written request to her for that patient's record, she would provide a copy to the patient. 11 Further, Ms Taylor proposed to undertake not to practise as an optometrist, but only within a 3 km radius of the Castle Hill premises. (As I have said, the primary area of the restriction was a circle of 5 kms' radius; in a not uncommon way, the restrictive covenant specified a series of decreasing areas, and a series of decreasing terms of restraint; and it appears that Ms Taylor had selected one of the lesser areas as being more favourable to her.) The agreement of 10 February 2005 12 Ultimately, after several hours of hearing, an agreement in principle was reached. Counsel were satisfied that the terms were clear and that each party understood them, and accordingly I stood the proceedings over to 11 February 2005 to enable counsel to bring in short minutes of order. This they did. In essence, the orders that I made by consent on 11 February 2005 involved a continuation of the existing regime up until further order. There were, however, some modifications. Those modifications were not, in my view, substantial. They dealt with two matters: