Your clients are of course at liberty to file such motion as they think fit. We note that, if such a motion is filed, your clients reserve their right to seek an order that this firm personally pay the costs of the motion, were it to succeed. In like manner, should such a motion be filed and should it be dismissed, our clients reserve their to seek an order that the principals of your firm personally pay the costs of the motion pursuant to section 99 Civil Procedure Act 2005." (emphasis added)
11 The solicitor for the plaintiffs in fact provided no information at all. Whatever view may be taken about what I said at [38] of my earlier decision, a review of this evidence, and in particular the affidavit material from the first plaintiff, makes it plain that no other or different decision on costs was appropriate or should have been made. The application to remove Mr Goldsmith was itself clearly unwarranted because the plaintiffs were apparently, if not certainly, prepared to make it on nothing more substantial or certain than an unfounded assumption, itself based at best upon an imperfect recollection, that the critical emails placed them at some perceived but unarticulated disadvantage. In the events that occurred, that turned out not to be true. The decision that I made on the challenge to the retainer issue would have been exactly the same if the emails in question had never materialised. They were confirmation that the plaintiffs' challenge was inappropriate and that Mr Goldsmith had not been provided with confidential information, but they did not amount to evidence supporting the suggestion that the fault somehow lay with Mr Goldsmith for not producing them earlier. No challenge to their late production, or Mr Goldsmith's explanation for it, was ever mounted.
12 In those circumstances, the plaintiffs must look to themselves for the cause of the costs that were incurred. They are no more entitled to a favourable, or different, costs order than would have been the case in the first place if the italicised portion of what I said at [38] of my earlier judgment had been wholly omitted or not relied upon. Moreover, the entire paragraph ought be considered. It is difficult to feel completely comfortable that the application to challenge Mr Goldsmith's retainer in the first place was caused merely by inadequate instructions, or an ill founded assumption, that confidential information had actually been communicated to him, rather than some kind of cynical adversarial or forensic opportunism. I see no reason either to revisit, or to amend, anything that I said in that paragraph, and I do not consider that any other costs order is now warranted or should be made.
13 It is therefore unnecessary to review the defendants' challenge to the plaintiffs' ability, as a practical or threshold matter, to raise the issue for reconsideration by me in the circumstances. In deference to the arguments that were mounted on both sides, however, I note that I was referred in this respect to JBK Engineering Pty Ltd v Brick and Block Co Pty Ltd [2007] NSWSC 163 at [4]-[7], Sundarajah v Teachers Federation Health Ltd (No 3) [2010] NSWSC 471 at [15], Metropolitan Petar v Mitrevski [2008] NSWSC 243 at [27], [30]-[31] and Nominal Defendant v Manning [2000] NSWCA 139, (2000) 50 NSWLR 139 at [70]-[73] and [122]-[124]. See also Fletcher v Besser [2010] NSWCA 30 at [17].
Orders
14 The plaintiffs' notice of motion filed 10 June 2010 is dismissed with costs.