For the reasons set out above, I will make orders requiring the defendant to discover documents responding to categories B(i), C, F, H, L, N and Q (confined to the 148 pages of Provincial Council Minutes for 1935-1952 identified in Mr Dale's affidavit dated 14 December 2023) as sought by the plaintiff.
In relation to the costs of the application, the plaintiff's position was that the application has resulted in the production of further documents by the defendant and that he has therefore succeeded and should be entitled to his costs.
In response, counsel for the defendant submitted that it may be appropriate to address questions of costs once the outcome of the application is known, but the defendant rejected any suggestion that it had capitulated on the application. Counsel observed that some documents were produced by the defendant before the application had been issued, and that otherwise a large number of the categories sought by the plaintiff were overly broad or otherwise inappropriate. He submitted that it may be appropriate to order that costs be in the proceeding, or otherwise that it could be an appropriate case to apportion the plaintiff's costs.
As the parties were not in a position to address any submissions about costs to the actual outcome of the application, I will allow a period of seven days for any party to file brief submissions (limited to three pages) on the questions of costs.
To assist in that process, without finally determining the matter, I express a provisional view at this stage that the circumstances of the application warrant the court allowing a portion of the plaintiff's costs, reflecting the fact that the plaintiff has succeeded on obtaining some further documents, but that the application overall was not optimally conducted and at least a portion of the resources involved in this process appear to have been unnecessary.
Although the plaintiff only succeeded on 7 out of 17 categories, I do not think awarding costs based on that percentage necessarily leads to a fair result, as it would fail to reflect the fact that some categories sought by the plaintiff will have involved more work than others. Moreover, the application has been successful in producing some further material for the plaintiff, and costs would ordinarily follow the event.
Accepting that this is an impressionistic figure, given what has occurred in the course of this application, and taking account of the difficulties posed by issues of timing and the lack of evidence or submissions by the plaintiff on some key points, as a provisional view I consider a fair outcome is that the plaintiff be entitled to 50% of his costs of the application.
The question of costs will be determined on the papers, based on any submissions the parties file on this point within the next seven days. In the event neither party files any submissions by that time, I will make a costs order in the form I have indicated at that time.
PRACTICE AND PROCEDURE - Discovery - Subsequent discovery application following earlier application resolved by agreement - No change in circumstances - Utility of further documents when documents relevant to foreseeability have already been discovered - Production of documents affected by National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) - Proportionality, utility and burden or cost of further discovery - Volunteer Fire Brigades Victoria Inc v Country Fire Authority[2016] VSC 573.