Elanor Investors Limited v Sydney Zoo Pty Ltd

Chronology

1. The following chronology identifies the key steps in the proceedings to date: 1. on 21 December 2018, the Applicant issued a notice to produce to court to the Respondent and a subpoena for production to a non-party, Australian Attractions Pty Ltd; 2. by notice of motion dated 21 January 2019, the Respondent applied to the Court: 1. to set aside the Applicant's notice to produce; 2. to set aside the Applicant's subpoena; and 3. for the Applicant to pay the Respondent's costs of the motion; 1. on 22 February 2019, Registrar Froh heard the Respondent's notice of motion dated 21 January 2019; 2. on 17 April 2019, Registrar Froh handed down Elanor Investors (Registrar), making the following orders inter alia in respect of the notice of motion dated 21 January 2019: (1) The Respondent's Notice of Motion filed on 21 January 2019 is dismissed. (2) Costs are reserved. … 1. by notice of motion dated 24 April 2019, the Respondent applied to the Court: 1. to set aside the orders made by the Registrar in Elanor Investors (Registrar); 2. to set aside the notice to produce; 3. to set aside the subpoena; 4. for the Applicant to pay the Respondent's costs of the notice of motion dated 21 January 2019; and 5. for the Applicant to pay the Respondent's costs of the notice of motion dated 24 April 2019; 1. in Elanor Investors (No 1), the following orders inter alia were made: (1) The Applicant's notice of motion dated 30 April 2019 is refused and leave to re-plead within 14 days is granted. (2) The Applicant is to pay the Respondent's costs of the notice of motion dated 30 April 2019. … 1. the Applicant filed an amended summons and an amended points of claim on 26 June 2019. 2. on 28 June 2019, the Applicant wrote to the Respondent confirming that it no longer sought production of certain material referred to in the notice to produce and subpoena, due to the amendments made to the summons and points of claim; 3. on 28 June 2019, the Applicant wrote to Beatty Legal, solicitors on the record for Australian Attractions Pty Ltd, confirming that it no longer sought production of certain material referred to in the subpoena, due to the amendments made to the summons and points of claim; 4. the amendments made to the notice to produce included the partial deletion of pars 4, 5 and 6, and the deletion of pars 11-19; 5. the amendments made to the subpoena included the partial deletion of pars 3 and 4; 6. on 26 July 2019, I heard the Respondent's notice of motion dated 24 April 2019; and 7. on 27 August 2019, in Elanor Investors (No 2) I made the following orders inter alia in respect of the notice of motion dated 24 April 2019: (1) Pursuant to r 49.19 of the Uniform Civil Procedure Rules, the orders made by the Registrar on 17 April 2019 are varied as follows: (a) the Applicant's notice to produce filed on 26 July 2019 is set aside in part and varied in accordance with this judgment; (b) the subpoena to produce filed by the Applicant on 26 July 2019 issued to Australian Attractions Pty Ltd is set aside in part and varied in accordance with this judgment. (2) Costs are reserved. …

Applicant's submissions

1. The Applicant submitted that it was successful before the Registrar who upheld the notice to produce and subpoena and largely successful in Elanor Investors (No 2) as most of the notice to produce and subpoena were upheld with some variation in relation to some paragraphs. Two paragraphs of the notice to produce and one paragraph of the subpoena were found to be invalid. Minor variations were made to the notice to produce and to the subpoena in relation to reduction of timeframes. The dominant result is the failure of the Respondent to alter the Registrar's decision. Costs in its favour should follow these events. A strict (impermissible according to Rossi v Living Choice Australia Ltd (No 6) [2014] NSWLEC 116 at [65 (Rossi)) mathematical approach would suggest the Applicant has been 95 percent successful. It should get all its costs paid.

Respondent's submissions

1. Before the Registrar the Respondent sought the setting aside of the subpoena and notice to produce in whole or part. The notice of motion was dismissed by the Registrar. As a result of Elanor Investors (No 1) the scope of the notice to produce and the subpoena were modified substantially. The necessary consequence of Elanor Investors (No 2) is that the position adopted by the Registrar in maintaining the entirety of the notice to produce and subpoena which was the position argued by the Applicant before the Registrar could not stand. The ultimate result was the substitution of the Registrar's decision. As such, the Respondent was wholly successful in achieving the overturning of the Registrar's decision in relation to the motion dated 21 January 2019. In these circumstances it would have been entitled to costs, had it sought them.
2. The parties had mixed success in their arguments on the second motion as parts of the notice to produce and subpoena were overruled and parts were upheld. The scope of several of the paragraphs was substantially reduced in relation to timing in particular, with a reduction of two years to one year.
3. In cases where there is a mixed outcome in proceedings, the court may apportion costs between issues where a party is successful, a matter of discretion for a trial judge: see Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 (Gummow, French and Hill JJ). Apportionment is not appropriate in this case as there is no clear division of issues on which a party was successful or failed. A comparison between the original form of the notice to produce and subpoena which was before the Registrar with the present form of these documents is likely to yield a costs order in favour of the Respondent. In the interests of pragmatism the Respondent does not press for such an order.
4. Given the complex history of the matter the parties would be likely to need a costs assessor if an order for apportionment is made, a likely waste of resources given the amount of costs involved. Each party should pay its own costs.

Consideration

1. Under s 98 of the Civil Procedure Act 2005 costs are in the discretion of the Court. As already noted the usual costs order is that costs follow the event in Class 4 proceedings as provided for in r 42.1 of the UCPR in the absence of disentitling conduct. Costs are compensatory not punitive, per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543 and 567 (Mason CJ and McHugh J respectively).
2. The Respondent was unsuccessful before the Registrar. It sought to cast the relevant circumstances in relation to Elanor Investors (Registrar) and Elanor Investors (No 2) as encompassing the separate application by the Applicant to rely on an amended summons and points of claim. This was refused with leave to re-plead being granted by me in Elanor Investors (No 1). As a result of the amended pleadings, fewer issues were identified by the Applicant. A substantial part of the notice to produce, a little over half, and part of the subpoena were no longer pressed (see chronology at [3(j)] and [3(k)] above). These documents were necessarily different from those considered by the Registrar. The review of the Registrar's decision in Elanor Investors (No 2) was affected by the reduced pleadings as large parts of the notice to produce and subpoena were no longer relevant. The two processes being the Respondent's challenge to the notice to produce and subpoena and the amendment of pleadings by the Applicant, were separate from a legal perspective in my view. I awarded costs in the Respondent's favour in Elanor Investors (No 1) as it was the successful party.
3. In relation to Elanor Investors (No 2), neither party was completely successful in its arguments. The nature of the issues required consideration of each of the remaining 11 paragraphs in the notice of motion and the remaining eight paragraphs in the subpoena and a separate ruling was made on each of these. Of the 11 paragraphs in the notice to produce, two were declared impermissible and two had a substantially reduced time frame imposed.
4. In Rossi at [65] I said: In proceedings concerning multiple issues in which an applicant does not succeed in all of them, and where issues are discrete, the court may consider the apportionment of costs per Brown v Randwick City Council, identifying various cases where the relevant principle has been considered in [10] and [11]. In Brown Preston J found that the fact that an applicant does not succeed on all issues raised in the proceedings is not sufficient by itself for the Court to depart from the usual rule and instead award costs only with respect to the issues on which the applicant did succeed. The issues on which an applicant does not succeed must be dominant or severable per James v Surf Road Nominees (No 2) [2005] NSWCA 296 at [35]. A strict mathematical approach is not called for per Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 6 IPR 261, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 30 ASCR 20 at 22.
5. The Applicant was completely successful before the Registrar and should have its costs of those proceedings paid. The Applicant was partially successful in Elanor Investors (No 2) and I consider it is appropriate to consider the apportionment of costs as the issues in which it was unsuccessful are clearly identifiable. Weighing up the outcome of Elanor Investors (No 2) and without applying a strictly mathematical approach, I consider that the Respondent should pay half of the Applicant's costs overall in relation to that notice of motion. I will so order.

Order

1. The Court orders: 1. The Respondent is to pay the Applicant's costs of the Respondent's notice of motion dated 21 January 2019. 2. The Respondent is to pay half the Applicant's costs of the Respondent's notice of motion dated 24 April 2019.

Amendments 14 November 2019 - typographical error - (1990) year missing Latoudis v Casey case at [9] and cover sheet 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: 14 November 2019