Orientile Pty Ltd v Salitrosa Holdings Pty Ltd

Introduction 1 These reasons address the question of costs in respect of the applicant's interlocutory application for non-standard discovery pursuant to r 20.15 of the Federal Court Rules 2011 (Cth) which I determined on 24 September 2021: Orientile Pty Ltd v Salitrosa Holdings Pty Ltd [2021] FCA 1154 (Orientile (No 1)). In Orientile (No 1), I dismissed the applicant's application and instead ordered limited mutual discovery in respect of one modified category. Familiarity with Orientile (No 1) is assumed. 2 The applicant seeks the following costs orders on its interlocutory application: (1) in relation to discovery categories 1 to 4 and 6, costs should be reserved; and (2) in relation to discovery category 5, costs should be costs in the cause. 3 The respondents contend that, having enjoyed substantial success in resisting the interlocutory application, they should have their costs of and incidental to the application.

Consideration 8 The Court has a broad discretionary power to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth). The ordinary rule is that costs follow the event. This is reflected in r 40.04(a) of the Rules. In my view, the applicant has not justified a departure from the ordinary rule for the following reasons. 9 The applicant's submission to the effect that the application was not doomed to failure because there is no default position in this Court as to whether discovery should precede or follow the filing of evidence ignores the specific circumstances of this case. The features of this case which weighed heavily in favour of any order for discovery following the filing of lay evidence are as follows: (1) the manner in which the applicant has pleaded its case has not been conducive to narrowing the issues in dispute: Orientile (No 1) at [12]; (2) it is likely that the exchange of lay evidence will result in the issues in dispute being refined and will avoid ambit discovery of documents irrelevant to the determination of the real issues in dispute: Orientile (No 1) at [23], [25], [28]; and (3) there appear to be a series of admissions in open correspondence that should enable the parties to significantly narrow the issues in dispute and refine the way in which any future documentary request is framed: Orientile (No 1) at [12], [25]. 10 It will be plain from the above that I reject the applicant's submissions to the effect that any future application by the applicant would be for substantially the same categories as were the subject of its first application. 11 The respondents have consistently, since the application was flagged during the first and subsequent case management hearings, maintained that it was premature and should, if required, follow evidence. The respondents were correct in their assessment, because of the particular circumstances outlined above. 12 As to category 5, I am not satisfied that the discrete issue in relation to this category warrants a separate costs order. The present application exemplifies that there are "good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like": Firebird Global at [6]. 13 Accordingly, I order that the applicant pay the respondents' costs on the interlocutory application filed on 3 August 2021. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

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