Qualify Me Pty Ltd v Get Qualified Australia Pty Ltd

1. The respondents to pay the applicant's costs of its application for discovery heard on 13 October 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 On 13 October 2016 I heard and determined an application by Qualify Me Pty Ltd (Qualify Me) for discovery and made orders requiring Get Qualified Australia Pty Ltd (Get Qualified) and Adam Wadi to provide discovery in 13 specified categories. 2 At the conclusion of the hearing of the discovery application I reserved costs on the basis that they would be determined on another occasion if the parties could not reach agreement in the meantime. As there has been no agreement, the parties have provided written submissions and have agreed that the question of costs is to be determined on the papers. 3 Section 43 of the Federal Court of Australia Act 1976 (Cth) confers a broad discretion on the Court to make orders for costs. That discretion, although unfettered, must be exercised judicially. Among other things, s 43(3) provides that the Court can make an award of costs at any stage in a proceeding, make different awards of costs in relation to different parts of a proceeding and award costs in specified proportions. In relation to the latter the Court can make orders for costs which reflect the partial success of respective parties: see Spotwire Pty Limited v Visa International Service Association [2004] FCA 1481. 4 In its application Qualify Me sought discovery in 15 categories. Get Qualified and Mr Wadi's primary response to Qualify Me's application for discovery was that there should be no discovery and that its application should be dismissed. That argument failed. The result of the subsequent argument on the relevance of each of the categories was that Get Qualified and Mr Wadi were ordered to provide discovery in 13 of the 15 categories sought by Qualify Me. I determined that there should be amendments to the terms of some of the 13 categories so as to narrow or provide greater clarity to the categories of documents sought by reference to the matters in issue in the proceeding. 5 Get Qualified and Mr Wadi submitted that Qualify Me has agitated the issue of discovery since this matter first came before the Court in August 2015, but that it has been difficult to engage in any meaningful discussion in relation to discovery because Qualify Me's statement of claim has been through five iterations and it is still to provide particulars of its alleged damages. Get Qualified and Mr Wadi further submitted that this made it difficult for them to assess whether or not they should bring or contest any interlocutory applications because it is not possible to say whether or not it is worth doing so whilst the amount at stake in the proceeding remains unknown. While this may be the case, it is not a relevant factor on the question of costs of the application for discovery. That was an application that Get Qualified and Mr Wadi chose to oppose. 6 Get Qualified and Mr Wadi also submitted at the hearing of the discovery application that the discovery sought was unlikely to yield any documents beyond those already in evidence because they denied most of the conduct alleged against them and thus they were unlikely to have many documents. Get Qualified and Mr Wadi noted that they provided their List of Documents to Qualify Me on 25 November 2016 and that all the documents in Part 1 of that List have already been exhibited to Mr Wadi's affidavit affirmed on 5 November 2015. Accordingly, they submitted that, as they had foreshadowed at the hearing of the discovery application, discovery has not advanced the matter and has essentially been a waste of time and costs. 7 It may well be the case that the outcome of provision of discovery by Get Qualified and Mr Wadi pursuant to the orders made on 13 October 2016 yielded few, if any, further documents to those already provided by them in their evidence filed and served to date. However, I make two observations about Get Qualified and Mr Wadi's submission and that outcome. First, the requirement that a party provide discovery may have forensic outcomes in a proceeding other than the disclosure of the actual documents included in a list of documents. Second, the outcome of the discovery in compliance with the orders that were made, that is, the documents in fact disclosed and produced, is to be distinguished from the outcome of the application for discovery. 8 While the Court can make orders for costs which reflect the partial success of respective parties, given the substantial success of Qualify Me in its application this is not a case where it is appropriate to do so. Although the categories of discovery were reduced and narrowed to some degree, it cannot be said that Get Qualified and Mr Wadi enjoyed success on discrete issues. 9 Qualify Me was substantially successful in its application for discovery. The appropriate order to be made in this case is that Qualify Me should have its costs of the discovery application. Accordingly, I will make an order that Get Qualified and Mr Wadi pay Qualify Me's costs of its discovery application heard by the Court on 13 October 2016. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.