Tyco Australia Pty Limited v Leighton Contractors Pty Limited

REASONS FOR JUDGMENT THE COURT 1 On 10 June 2005, the Court delivered judgment in an interlocutory appeal brought by the appellant: Tyco Australia Pty Limited v Leighton Contractors Pty Limited [2005] FCAFC 115. The appeal was from a decision of the Primary Judge that a respondent to a pre-action discovery order under Order 15A of the Federal Court Rules could not serve notices to produce on the applicants to the Order 15A order under a different order, namely Order 33 rule 12. The appeal was successful. The Court reserved the question of costs on the appeal and asked the parties to file submissions on that matter. 2 The respondent's success at first instance was based on a decision of O´Loughlin J in CCA Beverages (Adelaide) Ltd v Hansford [1991] FCA 925, upon which the Primary Judge relied as a matter of comity. 3 The hearing at first instance to determine whether the notices to produce should be set aside took place before the Primary Judge, as a matter of urgency, in the expectation that the parties would be in a position to file evidence prior to the date set down for hearing of the application for pre-action discovery. However, there was time only to deal with the question whether notices to produce could be issued in proceedings for preliminary discovery under Order 15A. A related issue of whether particular paragraphs of the notice to produce were oppressive was not dealt with. The respondent submits that if the Primary Judge had also dealt with the issues regarding individual paragraphs of the notices to produce, there would not have been the need for the present appeal to have been held in the manner in which it was held with the attendant costs to the parties. Consequently, the respondent submits that costs of the appeal should be reserved pending determination of the objections to the notice to produce. 4 The respondent's alternative submission that the appellant should only be awarded part of its costs as the appellant's submissions were, in effect, no more than an adoption of submissions made by counsel for the interests of another party (Hilton Group Plc) which withdrew from the appeal following the hearing, is a matter, as the appellant rightly points out in its written submissions, for the taxing officer on the taxation of the appellant's costs. 5 It is not in dispute that an order for costs involves the exercise of a judicial discretion and that in the ordinary case, costs should follow the outcome of an appeal. The appellant submits that, in the way the matter was ultimately dealt with, the appeal on the issue of principle concerning the appropriateness of a respondent to an order under Order 15A issuing notices to produce was separate from the question whether particular paragraphs in the respondent's notices to produce were oppressive. Thus it was submitted that the appellant is entitled to its costs of the appeal and accordingly, that costs should not be reserved. 6 In our view, the appellant's submission should be accepted. The question of power to issue a notice to produce was brought on appeal by all parties as a separate issue and hence is the subject of an appeal in which the appellant was successful. In the circumstances, the respondent should pay the appellant's costs of the appeal and of such of the proceedings before the learned Primary Judge as concerned the question of the power to issue a notice to produce. Any other costs at first instance as concerned the striking out of various paragraphs of the notices to produce will no doubt be reserved while the remaining issues are resolved at first instance. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Hely & Conti.