Supreme Court New South Wales Medium Neutral Citation: Wright Prospecting v Hamersley Iron [2012] NSWSC 1342 Hearing dates: On the papers. Decision date: 08 November 2012 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Costs in relation to claims for privilege to be costs in the cause. Catchwords: [COSTS] - interlocutory decisions - costs of resolution of claims for client legal privilege - whether discretion as to costs should be exercised in a way which recognises the success and failure of the interlocutory applications - no question of principle. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Wright Prospecting Pty Limited (Plaintiff) Hamersley Iron Pty Limited (First Defendant) Mount Bruce Mining Pty Limited (Second Defendant) Hancock Prospecting Pty Limited (Third Defendant) Representation: Counsel: R M Smith SC / D A Hughes (Plaintiff) M J Darke (1st to 5th Defendants) S J Rushton SC / J C Giles (3rd Defendant / 1st Cross-claimant) Solicitors: Horton Rhodes Legal (Plaintiff) Allens (Defendants) File Number(s): 2009/323345 Judgment 1HIS HONOUR: This judgment is concerned with the costs of resolution of claims for client legal privilege. The fact that the relevant parties are unable to agree even on the number of documents that were the subject of dispute is, unfortunately, characteristic of the way in which this litigation has been conducted. 2The documents in question were produced, and the claims for privilege were made, by the first to fifth cross-defendants, who include the first and second defendants. It is convenient to refer to the producing parties as "Rio". Rio produced either 48 or 50 documents in redacted form, claiming privilege over the redacted portions. The third defendant and cross-claimant (Hancock) challenged the claims for privilege. That challenge was advanced by notice of motion filed on 8 February 2012. 3After the notice of motion was filed, some claims for privilege were withdrawn. An amended notice of motion was filed on 22 March 2012 which reflected the withdrawal of the claims but sought production of unredacted copies of, I think, two further documents. 4I heard the amended notice of motion, in part, on 23 April 2012. Between 22 March and 23 April, further claims of privilege were withdrawn. 5The parties accepted that I could determine some of the claims for privilege by, among other things, looking at the documents in question. However, they submitted, if I were to be the trial judge, it would be inappropriate for me to look at the other documents. Thus, in respect of those other documents, I referred the remaining claim for privilege to Mr Jeremy Stoljar of Senior Counsel for inquiry and report. 6Mr Stoljar reported on the claims, upholding the greater part of them in total, some in part; and rejecting others. His report was adopted by consent. 7The parties have provided submissions, including submissions in reply, in support of their respective claims for costs. Hancock seeks either payment of its costs (including the costs of the reference); or payment of part of those costs; or an order that costs should be costs in the cause. 8Rio seeks payment of "a modest" amount of costs, which it quantifies at 25% of its costs of the motion. Alternatively, Rio submits there should be no order as to costs. 9I do not propose to go in any details to the parties' competing submissions. The simple fact is that, as the parties acknowledge, each has had some success and some failure. It is correct to say, as Hancock submits, that some of the claims for privilege were withdrawn only after the motion and amended notice of motion had been filed. It is equally correct to say, as Rio submits, that when one views the outcome overall, the majority of its unwithdrawn claims for privilege were upheld one way or another. 10The prima facie guidance offered by UCPR r 42.1 (that costs follow the event) has no application in those circumstances. 11In my view, it is inappropriate to attempt to dissect the relevant degrees of success and failure, and to reflect that in some costs order. This is a case where the discretion as to costs should be exercised in a broad-brush way, which recognises mixed success and failure. The appropriate way to do that is to make the costs of the application costs in the cause. 12In that way, whatever costs order is ultimately made will pick up the costs of the disputed claims for privilege. That seems to me to be entirely just, since the question of production related to documents that go to a crucial part of the claims, and the merits of those claims are as yet unresolved. It also recognises, as I have indicated, the mixed degrees of success and failure on the applications. 13I order that the costs of the notice of motion filed on 8 February 2012 amended on 22 March 2012, including the costs of the reference to Mr Stoljar SC and the costs of this application for costs, be costs in the cause. ********** 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: 08 November 2012