Supreme Court New South Wales Medium Neutral Citation: Younger v Westpac Banking Corporation [2016] NSWSC 401 Hearing dates: 7 April 2016 Date of orders: 07 April 2016 Decision date: 07 April 2016 Jurisdiction: Common Law Before: Garling J Decision: (1) Order the defendant to pay the plaintiff's costs of the notice of motion filed 31 March 2016. (2) Order that the costs thrown away by reason of the vacation of the final hearing date of 11 April 2016 be the plaintiff's costs in the cause. (3) Adjourn the matter generally for directions to 13 May 2016 and for the hearing of any notice of motion. (4) Grant the parties liberty to restore on one day's notice. Catchwords: COSTS – Notice of Motion seeking order for costs of an earlier Notice of Motion and costs thrown away by reason of the vacation of the hearing date – whether costs should follow the event – no point of general principle Legislation Cited: Not Applicable Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Neil Younger (P1) Westpac Banking Corporation (D1) Asgard Wealth Solutions Ltd (D2) Representation: Counsel: D R Pritchard SC / A M Edwards (P1) E Homes (D1, D2) Solicitors: Gillis Delaney (P) Allens (D1, D2) File Number(s): 2014/335469 Publication restriction: Not Applicable EX TEMPORE Judgment Background 1. In July 2015, the final hearing of the plaintiff's claim including the identified common issues was fixed for 11 April 2016 for a period of five days. 2. A series of interlocutory proceedings then took place over many months. Those interlocutory proceedings were against the background that the parties had been directed in July 2015 to address any issue of discovery by conferring and agreeing upon categories of documents that were appropriate to be discovered. 3. On 26 February 2016, the Court ruled on contested argument as to what issues were likely to be common from the group members' perspective in any hearing of the plaintiff's case. At the conclusion of those proceedings, counsel for the parties were directed to prepare short minutes to reflect the Court's orders and address any remaining question of discovery to be had between the parties. 4. On 4 March 2016, consequent upon the Court's ruling on the issues which were likely to be common, the Court made orders by consent identifying those issues to be determined. As well, with the exception of two categories which were determined by argument, the Court made orders for discovery to take place in time to enable the final hearing to occur on 11 April 2016. The timing of the provision of that discovery was agreed to by the parties. 5. The parties were given liberty to apply to the Court to vary orders on one day's notice. The defendant made no application to vary the discovery obligations. Notice of Motion 1. On 4 April 2016, the Court heard a Motion which had been put before the Court by the plaintiff seeking orders with respect to the inadequacy of the defendant's discovery, orders with respect to the vacation of the final hearing date, and other consequential orders. 2. On 4 April 2016, for reasons which I then expressed, I held that discovery had not been adequate because it appeared that, amongst other things, an inadequate range of dates in respect of board and committee minutes had been searched, and it appeared that a particular identified issue had not been the subject of any search at all. In those circumstances, it followed that the final hearing date had to be vacated. Whilst the plaintiff did not succeed in obtaining every order which he sought in the Motion, there is no doubt the plaintiff was substantially successful on the Motion. Submissions of the Parties 1. The plaintiff now seeks an order for costs of the Motion and an order for costs thrown away by reason of the vacation of the hearing date. The defendant resists those orders and submits that costs should be costs in the cause or, alternatively, costs should be reserved until the determination of the final hearing. 2. In support of the orders he seeks, the plaintiff submits that the ordinary rule is that costs should follow the event unless the Court otherwise orders, and that there is simply no basis with respect to the success of the plaintiff's Notice of Motion for the Court to "otherwise order". 3. The plaintiff submits that the hearing was vacated and costs were thrown away because of the defendants' inadequate discovery, and accordingly the plaintiff's costs of that vacation should follow the event. 4. The defendants submit that while the Court may have been correct on the material before it on 4 April 2016 to hold that the discovery was inadequate, when further discovery is had, it may prove to be the case that in substance the discovery was actually entirely adequate and therefore that the hearing ought to have proceeded. 5. The defendants also point to the short time within which the obligations of discovery were to be attended to. They say that they attempted to provide discovery in various tranches as expeditiously as possible and that, necessarily, reasonable decisions had to be made by experienced litigation solicitors with respect of the extent of discovery so as to enable the timetable to be complied with. Discernment 1. Broadly speaking, so much can be accepted of what the defendants say, but on the other hand, as the transcript of the submissions and discussion between the bench and bar on 4 April 2016 will disclose, there were good reasons on the material put before the Court on the Notice of Motion to demonstrate that inadequate searches had been undertaken. It seems to me that it follows from such a conclusion, particularly in the light of the absence of any application by the defendant to the Court to deal with the issue of discovery by varying its obligations or seeking an extension of time, that the plaintiff was put in a position where it was obliged to bring the Notice of Motion about inadequate discovery, it succeeded on that Motion, and there is no reason for the Court to "otherwise order" with respect to costs. The plaintiff is entitled to an order for costs of the Notice of Motion. 2. The order for the vacation of the hearing date, so it seems to me, is in a different category. There is some weight to be given to the submission by counsel for the defendants that the Court should wait to see the ultimate position with respect to discovery and whether it was adequate or not. The difficulty with that submission is that it is now apparent from the directions the Court has been asked to make that the defendants wish to revisit the question of discovery and seek to have the Court vary the categories of discovery which had previously been agreed. This presents a difficulty, because it may be that the Court is never put in a position in due course where it can judge whether the discovery given up to this point in time was adequate or not, because if the defendant's Motion or some part is accepted, the discovery exercise will be of a different nature, kind and quality. 3. Appreciating that the time limit for discovery was a short one, and appreciating that the hearing was vacated because of the inadequacy of discovery and taking into account that the landscape with respect to discovery may well change in the not too distant future, it is preferable if the Court makes a decision now on the question of the costs thrown away by reason of the vacation of the hearing. Any such order needs to reflect the issues to which I have referred. 4. In those circumstances, if I were to make the order sought by the defendants, namely that costs be costs in the cause, and the plaintiff was ultimately ordered to pay the costs of the proceedings, then the defendants would have their costs of the hearing that was vacated. That does not seem to me to be a fair outcome. What needs to be protected with respect to the costs of vacation of the hearing are such costs of the plaintiff as may have been wasted, if any. In those circumstances it seems to me that the interests of justice would require an order to be made which provided for the plaintiff's costs thrown away by reason of the vacation of the hearing date to be the plaintiff's costs in the cause. 5. Accordingly, on this question of costs I make the following orders: 1. Order the defendants to pay the plaintiff's costs of the notice of motion filed 31 March 2016. 2. Order that the costs thrown away by reason of the vacation of the final hearing date of 11 April 2016 be the plaintiff's costs in the cause. 3. Adjourn the matter generally for directions to 13 May 2016 and for the hearing of any notice of motion. 4. Grant the parties liberty to restore on one day's notice. ********** Amendments 11 April 2016 - Typographical amendments in body of judgment. 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: 11 April 2016