SG v New South Wales Crime Commission

Supreme Court of NSW|2018-12-12|Before: Rothman J

Judgment

HIS HONOUR: The Court is required to deal with the issue of costs as between the parties in relation to interlocutory issues that have arisen in relation to the filing of the Statement of Claim and various attempts to amend, as well as issues associated with one or more Notices to Produce and a Motion to strike out.
The matter was listed for hearing on the last occasion before the Court as presently constituted and the parties consented to orders that were then issued. The only issue that was outstanding on any Motion was the issue of costs, which the parties raised on 3 May 2019 and the Court determined that it would be dealt with on the papers.
Written submissions have been filed over an extended period and this judgment deals with the question of costs in relation to the interlocutory proceedings up to and including 12 December 2018.
The Court as presently constituted has previously set out a chronology of issues that have come before the Court. Unfortunately, it is necessary to recite some of that history, which has largely been summarised by the defendant in its written submissions.

Principles

The discretion to award costs in proceedings must be exercised judicially, but is otherwise a broad discretion. Costs are not to be utilised for punishment, but are compensatory of the costs incurred as a result of proceedings taken and/or defended to enforce or defend one's rights.
At final hearing, the ordinary rule is that costs follow the event, which applies to Motions that add to the costs of the proceedings generally. The foregoing are general rules, which give way to particular proceedings that, in the exercise of the Court's discretion, ought be determined differently.
Thus, for example, there is often great dispute as to what is the "event" for the purpose of determining the application of the general law and it is clear that it does not necessarily extend to the whole of the proceedings, although it will generally. It may be determined on the basis of arguments on an issue-by-issue basis. However, having made that comment, the Court does not ordinarily apportion costs as between the different issues that may be raised, particularly where those issues were reasonably or necessarily raised in the course of the proceedings as a whole.
Different issues arise in relation to interlocutory orders. Where, as is the case in relation to the proceedings for the filing of Amended Statements of Claim, a party is seeking an indulgence which, thereby, causes additional costs to other parties, the party seeking the indulgence is, usually, responsible for the costs.
It has been held that the public interest in encouraging parties to compromise interlocutory proceedings requires that the Court should be careful or reluctant, when ordering costs of an interlocutory application that has been the subject of orders by consent: Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581, but, again, this is a general rule which must be subject to particular considerations: ASIC v Rich [2003] NSWSC 297.

Consideration

As at the times and dates of which the Court, as presently constituted, has knowledge, the plaintiff has yet successfully to file an Amended Statement of Claim. There have been a number of hearings associated with attempts to file an Amended Statement of Claim (or various drafts of same). To the extent that those attempts have caused the defendant to incur costs, the plaintiff should bear the cost and the plaintiff should pay the costs of the defendant.
As to the Commission's strike-out Motions, these have already been the subject of costs and the Court will not vary those costs orders. As a consequence of the foregoing, there are two further aspects of the proceedings that should be the subject of costs or consideration of costs.
The first is the cost of the Commission in responding to the plaintiff's Notice to Produce of 9 October 2015. That Notice to Produce was not pressed and the Commission's costs of responding to it, which may be substantial, should be compensated. The withdrawal of the plaintiff's Notice to Produce of 9 October 2015 was effected (and notified) only at the hearing. As a consequence, SG will be ordered to pay the Commission's costs of and incidental to responding to the plaintiff's Notice to Produce of 9 October 2015.
Lastly, there are the costs of the summary dismissal Motion, the strikeout Motion and the Commission's Notices to Produce. The summary dismissal Motion in the strikeout Motion have in my view already been the subject of costs orders and will not be the subject of further costs orders, save for what follows. The Commission's Notices to Produce are matters that will, ultimately, have to be determined and are yet to be determined. Further, they are necessary aspects of the proceedings that are in place.
In my view, the costs of the summary dismissal Motion, and the strikeout Motion, that have not otherwise been the subject of costs orders should be costs in the cause as should the Commission's Notices to Produce.
The Court will make the following orders: 1. Orders already made, as at 3 May 2019, for the payment of costs are not varied; 2. The plaintiff shall pay the defendant's costs of and incidental to responding to the plaintiff's Notice to Produce of 9 October 2015; 3. Costs of all matters, up to and including 3 May 2019, not otherwise the subject of an order for costs, shall be costs in the cause.

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: 03 January 2020

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