Supreme Court New South Wales Medium Neutral Citation: Robert CLEMETT v NEW SOUTH WALES LOTTERIES CORPORATION PTY LTD (No 2) [2011] NSWSC 150 Hearing dates: Thursday 3 March 2011 Decision date: 15 March 2011 Before: HOEBEN J Decision: The defendant and the plaintiff to pay his or its own costs of the application for preliminary discovery including the costs argument. Catchwords: COSTS - application for preliminary discovery - plaintiff substantially successful - summons and affidavits originally filed misconceived - costs wasted by defendant in preparing to meet original claim - significance of plaintiff's representation under Pro Bono Referral Scheme - need to balance competing considerations - each party to pay his or its own costs. Cases Cited: Robert Clemett v NSW Lotteries Corporation Pty Ltd [2011] NSWSC 121 Steffen v ANZ Banking Group [2009] NSWSC 883 Category: Procedural and other rulings Parties: Robert Clemett - Plaintiff NSW Lotteries Corporation Pty Ltd - Defendant Representation: Counsel: Mr D Villa - Plaintiff Mr J Hogan-Doran - Defendant Solicitors: Eakin McCaffery Cox - Defendant File Number(s): 2010/138776 Judgment 1HIS HONOUR: Nature of proceedings On 24 February 2011 I gave judgment in favour of the plaintiff in Robert Clemett v NSW Lotteries Corporation Pty Ltd [2011] NSWSC 121. The effect of that judgment was that the plaintiff was entitled to an order for preliminary discovery in his favour. Each party has now sought costs orders in his or its favour. 2The plaintiff seeks the costs of the proceedings. The defendant seeks an order for costs up to the date of the filing and service of the Further Amended Summons (8 November 2010) and thereafter an order that each party pay his or its own costs. 3This judgment is in relation to that costs dispute. Factual background 4The plaintiff and Wallace J Shelley filed a Summons seeking preliminary discovery on 3 June 2010. An Amended Summons was filed on 6 August 2010. I do not know who Mr Shelley is or what his standing to bring proceedings is but his name did not appear on the Further Amended Summons and accordingly these orders do not affect him. 5These summonses were expressed in general terms and sought in effect production of all entries in OzLotto Draw 188 which had been processed through the terminal at the Greenfield Park Newsagency. The summonses sought that discovery be made personally to the plaintiff and Mr Shelley. The summonses were supported by lengthy affidavits sworn by the plaintiff. 6The Further Amended Summons of 8 November 2010 upon which the plaintiff ultimately proceeded, sought a narrow category of documents which were clearly identified and particularised. As well as the earlier lengthy affidavits, the Further Amended Summons was supported by a short further affidavit of the plaintiff which explained the relevance of the documents sought in that summons. 7At the time the Summons, Amended Summons and supporting affidavits were filed, the plaintiff was appearing for himself. On 18 October 2010 Harrison J made an order in the plaintiff's favour under Uniform Civil Procedure Rule 7.33 (UCPR) that the plaintiff be referred to the Registrar of the Supreme Court for referral to a barrister on the Pro Bono Legal Panel for assistance. It was as a result of that order that Mr Villa of counsel came to act on behalf of the plaintiff. It is clear that the Further Amended Summons and its supporting affidavit were prepared and filed as a result of Mr Villa's representation. 8When the matter came before the Court for hearing on 15 December 2010, the defendant tendered a substantial folder which contained in it a summary of correspondence received by the defendant from the plaintiff over an 8 year period. It also contained copies of parts of that correspondence. Submissions 9The primary position of the plaintiff is that he substantially succeeded in his application, which was opposed by the defendant. Since he did succeed, he relies upon UCPR 42.1, i.e. that "costs should follow the event". He submits that while the defendant is not to be criticised for opposing the application, it should now live with the consequences of adopting that position and pay his costs ( Steffen v ANZ Banking Group [2009] NSWSC 883). 10The plaintiff submits that although the defendant did substantial work in order to meet his Summons and Amended Summons and the affidavits in support, that work was not wasted. It was still relied upon when the defendant opposed his application on 15 December. This evidence was relied upon by the defendant to substantiate the proposition that the plaintiff was not entitled to make a claim against the defendant. 11From a policy point of view, the plaintiff submits that regard should be had to the fact that he obtained legal representation under the Supreme Court's Pro Bono Referral Scheme. He submits that the Court should not create a disincentive to the operation of the Scheme by penalising those who provide legal assistance because of the conduct of the assisted person before he or she obtained representation. 12The defendant submits that the costs the defendant incurred in meeting the plaintiff's original Summons and Amended Summons and his voluminous affidavit evidence were substantial. The defendant's estimate is an amount in excess of $33,300. The defendant notes that although the plaintiff's earlier affidavits were formally read, they were not relied upon in the proceedings. 13The defendant submits that the contents of the Further Amended Summons constituted a substantial abandonment of the relief originally sought by the plaintiff. In the original Summons and Amended Summons a substantial quantity of documents were sought without any concession being made as to conditions or as to whom those documents would be produced. In essence the defendant submits that the plaintiff's case on preliminary discovery substantially changed following the filing of the Further Amended Summons and affidavit in support. 14The defendant submits that even after the plaintiff became legally represented, he still failed to articulate the basis of his entitlement to inspect the documents despite being ordered to do so by the Court on 23 September 2010. The nature of his proposed claim was not communicated until the hearing took place on 15 December 2010. The defendant submits that even as late as 9 December 2010, the plaintiff by email sought additional documents which were not referred to in the Further Amended Summons. In those circumstances, the defendant submits it was entitled to fully contest the application. 15The defendant submits that the circumstances of this case are unique and differ from the usual application for preliminary discovery. It submits that in the light of the conflicting information submitted by the plaintiff over 8 years, it was reasonable for it to contest the application. 16In relation to the Pro Bono Referral Scheme, the defendant submits that the scheme does not give rise to any special costs considerations and the normal rules as to costs apply. It submits that the existence of the scheme suggests that litigants, who are unable to afford legal representation, should make use of the scheme before they commence proceedings and expose other persons to the expenditure of legal costs. Consideration 17It is clear that the plaintiff's application needs to be looked at in two parts. The initial Summons, the Amended Summons and the voluminous documents filed in their support were essentially misconceived. I accept the defendant's submission that in view of the history of the matter, in particular the plaintiff's tenacious maintenance of his position in correspondence over many years, it had to be prepared to meet the matters raised in those documents. 18The second phase of the proceedings commenced after Mr Villa became involved and is best demonstrated by the limited nature of the documents sought in the Further Amended Summons and the focused nature of the plaintiff's affidavit filed in its support. Not only did the summons restrict in a realistic way the documents which were sought, but it was made clear that the documents would not be produced directly to the plaintiff and that reasonable conditions associated with their production would be accepted. 19The dilemma for the defendant was the extent to which the plaintiff's claim would continue to be presented in this controlled and focused way. The email of 9 December 2010 in which different documents were sought by the plaintiff was indicative of a real risk that the restraint imposed by the Further Amended Summons may not continue up to the hearing. It was therefore necessary for the defendant to be able to meet not only submissions related to the Further Amended Summons, but the broader claim for preliminary discovery which had originally been made. 20I accept that a considerable part of the preparation by the defendant to meet the claim was rendered otiose by the filing of the Further Amended Summons. However, it is equally clear that much of the preparation remained relevant and was relied upon in the hearing of the claim. An important part of the defendant's opposition to the more limited claim for preliminary discovery was the unreliability of the plaintiff's various assertions regarding his OzLotto ticket over the years. 21The point raised concerning the implications of the Pro Bono Referral Scheme is an interesting one. The Scheme provides valuable assistance to impecunious litigants. The Court is also assisted because submissions are put in a logical and coherent way. The Scheme can only work because barristers and solicitors are prepared to give up their time and use their knowledge and skills at no charge. A claim for costs is only made if the assisted person is successful. 22That having been said, and while I am sympathetic to the position of those lawyers who participate in the Scheme, the question of their remuneration is really one for Government. The rules of court make no special provision for persons providing such representation. In deciding costs questions of this kind, while the Court has a broad discretion, that discretion has to be exercised in a principled manner. 23The question which I have to decide can be best articulated as follows: On the one hand there are the wasted costs associated with the initial Summons and Amended Summons and supporting documents which were essentially misconceived. On the other hand, there is the Further Amended Summons which sought only limited documents and which was ultimately successful. Given the history of the matter, it was understandable that the defendant would oppose even this limited application for preliminary discovery. Ultimately, the plaintiff was substantially successful in relation to the Further Amended Summons. 24It seems to me that in balancing these competing considerations that the most appropriate resolution is that each party pay his or its own costs and that is the order which I propose to make in due course. Conclusion 25When I handed down my reasons for judgment on 24 February 2011, I invited the parties to agree on the orders which the Court should make in relation to preliminary discovery. That agreement has now taken place and I have been provided with Consent Orders. Accordingly, the orders which I now make relate to that earlier judgment and to the costs issues in this judgment. 1. Subject to orders 2 and 3, pursuant to UCPR Rule 5.3, the defendant is to provide discovery in accordance with UCPR Part 21 of the following categories of documents: (a) The computerised records of all entries in Oz Lotto Draw No 188 (which lottery was drawn on 23 September 1997) made through the Greenfield Park Newsagency between the hours of 1pm and 3pm on each of 17,18 and 19 September 1997; (b) The computerised records of all tickets issued in Oz Lotto Draw No 188 (which lottery was drawn on 23 September 1997) made through the Greenfield Park Newsagency between the hours of 1pm and 3pm on each of 17,18 and 19 September 1997 with a ticket serial number ending in 13298, (collectively, "the Documents"). 2. Upon undertakings given to the Court: (a) by the solicitor for the defendant that the solicitor has provided advice to the defendant in the terms referred to in UCPR 21.4(3)(a); (b) by the defendant that the Documents to be provided to Mr Villa of counsel pursuant to order 3 are a true and complete representation of the computerised records in the possession, custody or control of the defendant and failing within the categories referred to in order 1, I dispense with the requirements of UCPR Rules 21.3 and 21.4. 3. I dispense with the requirements of UCPR Rule 21.5 and in lieu thereof order the defendant to provide a copy of the Documents to Mr Villa of counsel, on condition that: (a) Mr Villa does not make a copy of any such document, and (b) Mr Villa does not disclose the contents of those documents to any person other than in accordance with order 4, or with the prior written consent of the defendant. 4. Notwithstanding order 3, Mr Villa of counsel is at liberty to disclose to the plaintiff whether or not: (a) any of the tickets contained any game square containing (in that same square) as numbers selected by the subscriber or player all of the numbers 10, 24, 28, 34, 37 and 45; and (b) any of the tickets had a serial number ending in the numbers 13298. 5. I direct Mr Villa of counsel to, within 28 days of the documents being provided to him pursuant to order 3, place those documents along with any notes taken in relation to those documents in an envelope marked "Privileged" and forward that envelope to the Registrar for the envelope to be placed with the Court file. 6. I order the defendant and the plaintiff pay his or its own costs of the application for preliminary discovery including the costs argument. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2011