BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd

Introduction 1 On 2 August 2021, I published reasons for judgment which considered whether orders should be made to extend the time for compliance with orders for preliminary discovery made against the prospective respondents; to more precisely define certain categories of documents which should be discovered by the prospective respondents; and to ensure that the list of documents and affidavit verifying the discovery required to be given by each of the first to third prospective respondents (the CoreLogic parties) is in appropriate form: BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 3) [2021] FCA 884. 2 The prospective respondents did not dispute that some orders should be made: proposed Order 1 (subject to a three week extension being given) and proposed Order 6. Other proposed orders were contested: proposed Orders 2(a) - (c); proposed Orders 3(a) - (c); proposed Order 4; and proposed Order 7. 3 I was satisfied that all proposed orders should be made, other than proposed Orders 3(b) - (c) and proposed Order 7. 4 Orders in agreed form, giving effect to my reasons, were made on 10 August 2021. 5 At the time of hearing the application, the prospective applicant, BCI Media Group Pty Ltd (BCI), sought an order for costs against the CoreLogic parties. BCI did not seek an order for costs against the fourth and fifth prospective respondents (the Gingold parties). 6 The CoreLogic parties contended, provisionally, that the appropriate order should be that the costs of BCI's application be costs in the cause. They nevertheless sought the opportunity to address the question of costs once the outcome of BCI's application was known. I gave that opportunity to all parties, who have now filed written submissions on that question. 7 There are two other introductory matters to which I should refer. 8 First, after the filing of the submissions on costs, when judgment on costs was reserved, the fourth prospective respondent, Gingold Investments Pty Ltd (Gingold), was placed in liquidation. As a consequence, the stay provided in s 471B of the Corporations Act 2001 (Cth) is in force. This, however, does not prevent the Court from giving judgment on the reserved question of costs. 9 Secondly, and more recently, BCI sought leave to file a supplementary submission based on documents produced by the CoreLogic parties as a result of the orders made on 10 August 2021. Leave was opposed. I listed the matter for further case management on that question. After hearing BCI at the case management hearing, I was not persuaded to grant leave.

The submissions 10 BCI submits that it was substantially successful in its application, which was to ensure that the prospective respondents met their preliminary discovery obligations. It submits, therefore, that the prospective respondents should pay its costs of and incidental to the application. 11 This is a departure from the position which BCI adopted at the hearing, in that it now seeks an order for costs against the Gingold parties as well. 12 BCI submits that the CoreLogic parties and the fifth prospective respondent, Mr Colangelo, adopted an unwarranted adversarial approach to the application, particularly in relation to the orders which sought to extend time for compliance with the previous orders for preliminary discovery. 13 BCI submits that, despite requiring such an extension, the CoreLogic parties, just before the hearing of the application, gave further discovery, and indicated that significant further review was being undertaken which might lead to further discovery. Then, the day before the hearing of BCI's application, they consented to the proposed Order 1. 14 At the hearing of BCI's application, the Gingold parties also consented to time being extended for compliance by Gingold with its discovery obligations. It should be appreciated that, up to that time, Gingold had failed to give any discovery at all and was in default of its obligation to do so. 15 The CoreLogic parties submit that BCI enjoyed only mixed success in its application. They rely on the fact that they did consent to proposed Order 1, and that BCI was not successful in obtaining proposed Orders 3(b) - (c). As to the proposed Order 4, the CoreLogic parties submit that this concerned no more than a technical matter concerning the adequacy of the verifying affidavit that had already been provided. They submit that it remains to be seen whether the verification of three separate affidavits will have any practical effect. They submit that, as between them and BCI, the appropriate order is that the costs of BCI's application be costs in the cause or, alternatively, that costs be reserved. 16 The Gingold parties draw attention to the fact that BCI had changed its stance on the question of costs as against them. They submit that consent was given to proposed Order 6, and that BCI was unsuccessful in obtaining proposed Order 7. They submit that the substantial part of BCI's application was directed to the proposed orders sought against the CoreLogic parties. They submit that, as between them and BCI, there should be no order as to costs.

Disposition 17 As between BCI and the CoreLogic parties, the CoreLogic parties should pay BCI's costs of and incidental to the application, other than in respect of the case management hearing on 18 October 2021 dealing with BCI's application for leave to file a supplementary written submission. BCI's application in relation to further discovery was plainly warranted in the circumstances, and it was largely successful in obtaining the relief it sought. The fact that BCI did not obtain proposed Orders 3(b) - (c) is of little moment in the scheme of things. Further, I do not accept the CoreLogic parties' submission that proposed Order 4 was dealing with nothing more than a technicality. 18 As between BCI and the Gingold parties, I accept the Gingold parties' submission. There should be no order as to costs, with the intent that BCI and the Gingold parties will bear their own costs of and incidental to BCI's application, other than in relation to the case management hearing on 18 October 2021. 19 The case management hearing on 18 October 2021 was listed to deal with BCI's application for leave to file supplementary written submissions on costs. It was unsuccessful in obtaining leave. BCI should bear the costs of and incidental to the case management hearing on 18 October 2021. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.

SCHEDULE OF PARTIES NSD 529 of 2020 Respondents Fourth Prospective Respondent: GINGOLD INVESTMENTS PTY LTD (ACN 007 762 834) Fifth Prospective Respondent: ANGELO COLANGELO