Cappuccio v Australia & New Zealand Banking Group Ltd

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for preliminary discovery. The application was not presented in a form that could entitle the applicant, when it came before the Court some time ago, to any relief, and I made an order that certain costs be paid by the applicant. However, I stood the matter over, rather than dismiss it, to give a further opportunity to the applicant to clarify aspects of the application and to show whether or not some relief ought to be granted. The applicant did persist in seeking some relief, and ultimately the respondent bank did, without further order of the Court and by arrangement between the parties, produce some documents, which the applicant has accepted as being all that it can reasonably seek in this application. 2 That left outstanding the issue of any further costs orders. I have been referred to the decision of Hill J in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194. That case, and indeed a number of other cases in the same area of law (see also Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 283 and Rizal v Minister for Immigration and Multicultural Affairs [1999] FCA 334), have made it clear that the Court does not engage, generally speaking at any rate, in a mini trial in order to determine what the costs order would have been if a case which is resolved had not been resolved but had been fought right out. The reasons are obvious why that is not a desirable course for courts to pursue. 3 However, I have a discretion as to just what I should do in respect of costs, and it seems to me that the costs order which would be appropriate in a case like this depends very much on the consequences of the discovery obtained. If the applicant for preliminary discovery uncovers enough to enable that applicant to bring proceedings which are successful, there may be much to be said for the proposition that the costs of the preliminary discovery should form part of the costs of the action. On the other hand, if the applicant proceeds, brings an action, fails, and is ordered to pay the costs of that action, there seems every reason why, generally speaking, the costs of the preliminary discovery should be included in the costs payable to the respondent. 4 There may, of course, be cases where there are special reasons to vary the normal rule that costs follow the event. In this particular case, having listened to the arguments of both sides, each of whom seeks a costs order, I have come to the conclusion that the appropriate order, in the event that a case is brought for substantive relief, is that the costs of this application be at the discretion of the tribunal which hears the substantive application. In all the circumstances, I order that, if a substantive application is brought by the applicants against the respondent bank within six weeks from today's date, the costs be dealt with in the way I have indicated. 5 That leaves the position if no such substantive application is brought. In that event, although Mr Ryan seeks costs as between solicitor and client, I do not think it would be right, simply because a costs order might be in itself appropriate, that I should extend that costs order beyond the normal costs order made in the court. Solicitor and client costs orders are something of a rarity, but I do think that if a party seeks preliminary discovery, and having obtained it, is unable to make out any cause of action with sufficient prospects of success to be worth bringing, the appropriate costs order is, generally speaking, that the applicant for preliminary discovery should pay the costs of that preliminary discovery. There might be various reasons to order otherwise in a particular case, but in this case I have come to the conclusion that that is the appropriate order. So if there be no such action, as I have already