New South Wales Supreme Court CITATION : Sundararajah v Teachers Federation Health Ltd (No. 4) [2010] NSWSC 740 HEARING DATE(S) : 13 May 2010 JUDGMENT DATE : 7 July 2010 JURISDICTION : EQUITY DIVISION JUDGMENT OF : Davies J DECISION : The Defendant is to pay 75% of the Plaintiff's costs of the Defendant's Motion filed 10 February 2010. CATCHWORDS : COSTS - Defendant's Motion to vary the terms of an interlocutory order - Defendant largely unsuccessful on the Motion - whether costs should be costs in the cause - discrete interlocutory issue - Defendant to pay 75% of the Plaintiff's costs. CATEGORY : Separate question CASES CITED : Sundararajah v Teachers Federation Health Ltd (No. 2) [2010] NSWSC 259 Sundararajah v Teachers Federation Health Ltd (No. 3) [2010] NSWSC 471 PARTIES : Dr Raahulan Sundararajah (Plaintiff) Teachers Federation Health Ltd (Defendant) FILE NUMBER(S) : SC 2009/291703 COUNSEL : C Harris SC & P Arblaster (Plaintiff) S Philips (Defendant) SOLICITORS : TressCox Lawyers (Plaintiff) Henry Davis York (Defendant) - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DAVIES J 7 JULY 2010 2009/291703 DR SUNDARARAJAH V TEACHERS FEDERATION HEALTH LTD (NO. 4) JUDGMENT 1 On 27 May 2010 I made orders on the Defendant's Notice of Motion filed 10 February 2010 which sought a variation of the interlocutory injunction I granted on 18 December 2009. In that judgment (Sundararajah v Teachers Federation Health Ltd (No. 3) [2010] NSWSC 471) I declined to vary the order I made to permit the Defendant to issue a substitute Notice pursuant to cl 7.3 of the Agreement between the parties, but it was made clear that there was no impediment to the Defendant issuing a notice under cl 7.2 if it was otherwise appropriate to do so. 2 The question has now arisen concerning the appropriate costs order in respect of the Motion. The parties have filed brief written submissions in relation to costs. The Defendant submits that the costs should be costs in the cause. Two alternative positions were put. The first is that the Defendant should pay 75% of the Plaintiff's costs of the Motion with such costs to be the Plaintiff's costs in the cause. The second is that, because much of the work undertaken by the Plaintiff with respect to the Motion was work that will be needed for the final hearing (in terms of affidavit preparation) the Defendant should be ordered to pay no more than 50% of the Plaintiff's costs of the Motion. 3 The Defendant makes 3 points in support of its position. First, the Defendant says that part of the hearing of the Motion dealt with the proper construction of Order 1(a) made on 18 December 2010 and that this arose from the Plaintiff's submission that the injunction restrained the issuing of a Notice under cl 7.2 as well as cl 7.3. It is said that submission was not accepted. 4 Whilst it is true that part of the hearing of the Motion dealt with the proper construction of the order, that did not, in the first instance, arise from any submission of the Plaintiff but from the matter I raised at the outset of the hearing of the Defendant's Motion. Nevertheless, I accept that the Plaintiff then argued that the order did, as a matter of construction, govern the issue of notices under cl 7.2. The Plaintiff was unsuccessful in that regard. 5 The Defendant's second point is that the affidavit evidence relied upon by the Plaintiff on the hearing of the Motion is largely evidence that the Plaintiff will rely on at the final hearing. It is unfair, the Defendant says, for the Plaintiff effectively to recover the costs associated with the preparation of that evidence at this stage because the Defendant may ultimately be successful in the proceedings. 6 The third point the Defendant makes is that the Motion also sought expedition which, although initially opposed by the Plaintiff, was granted by White J. 7 In relation to the order for expedition the Plaintiff says that it did not oppose expedition when the matter subsequently came before White J. That was because the Defendant's Motion of 10 February 2010, which I heard and determined on 27 May 2010, had caused delays up to that time. 8 I do not intend to have any regard to the fact that expedition has ultimately been ordered because I did not deal with that part of the Motion. The usual order where expedition is sought would be that costs would be costs in the cause. 9 When I gave my decision on the Motion I noted that I had not made any order about costs to give the parties an opportunity to make submissions. I indicated that since the Plaintiff had been largely successful, my prima facie view was that the Defendant should pay somewhere between 75% and 80% of the costs of the Motion. The Plaintiff, in his submission, has submitted that the Defendant should pay 80% of the costs of and incidental to the Motion. 10 In my opinion, the submissions of the Defendant, that the costs of the Motion should either be costs in the cause or that an award of 75% of the costs to the Plaintiff should be the Plaintiff's costs in the cause should be rejected. 11 The Defendant sought to vary an order which I had made on the basis of evidence put forward that did not ultimately justify variation of the order in all of the circumstances. That seems to me to be an entirely separate matter from the issue of whether the Defendant might ultimately be successful at the trial. This was a discrete issue which involved the parties incurring costs in terms of preparation of evidence and a hearing for almost a day. 12 Even if the affidavit evidence will be used at the final hearing it was also evidence necessary for the hearing of the Motion. Its use again at the final hearing is not a reason to make the Plaintiff's costs of the Motion dependent on the outcome of the final hearing. If the Defendant is able to demonstrate on any assessment of costs of the Motion that the affidavits had a dual purpose (the Motion and the final hearing) that is no doubt something the costs assessor will take into account in determining what costs are reasonable in relation to the Motion. 13 Part of the determination of the Motion involved argument concerning the provision of, and reliance on, redacted documents by the Defendant. In a separate judgment I made preliminary rulings in relation to the proposed use of redacted documents. The Plaintiff was largely but not wholly successful on that argument. Whilst that argument also had relevance to the evidence to be used at a final hearing I consider that it also formed a relatively discrete interlocutory issue. I was informed that a judgment on that issue was necessary before the Motion itself could be heard. 14 The Plaintiff was largely successful on the Defendant's Motion to vary the terms of the order. Bearing in mind the relative successes of the parties reflected in the two judgments delivered by me on 30 April 2010 (Sundararajah v Teachers Federation Health Ltd (No. 2) [2010] NSWSC 259) and 27 May 2010 (Sundararajah v Teachers Federation Health Ltd (No. 3)) I consider that the Defendant should pay 75% of the Plaintiff's costs of the Defendant's Motion. Conclusion 15 I order the Defendant to pay 75% of the Plaintiff's costs of the Defendant's Motion filed 10 February 2010. ********** - 13 - DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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