Fisher v Houston [2013] FCA 1026

Fisher v Houston [2013] FCA 1026

Mr Fisher reasonably commenced the preliminary discovery application after making inquiries and giving Mr Houston two opportunities to respond, and reasonably discontinued once Mr Houston's affidavit showed the source was an individual acting in a personal capacity. After receiving Mr Fisher's written submissions on or shortly after 9 July 2012, Mr Houston knew the proposed Privacy Act claim depended on the capacity in which the source acted and could have disclosed that capacity without identifying the source. His delay caused additional preparation costs, so he was ordered to pay Mr Fisher's costs incurred after 16 July 2012.

Jurisdiction
Australia
Judgment Date
11 October 2013
Procedural Posture
Application for Preliminary Discovery; Costs Following Discontinuance / Heard on the Papers After Notice of Discontinuance
Outcome
Mr Houston was ordered to pay part of Mr Fisher's costs after discontinuance of the proceeding.
Legal Topics
['costs After Discontinuance' 'reasonableness in Commencing, Maintaining and Discontinuing Proceedings' 'preliminary Discovery to Identify a Potential Respondent' 'journalist Source Confidentiality' 'privacy Act 1988 (cth)']
['costs' 'civil Procedure' 'preliminary Discovery' 'privacy'] ['costs After Discontinuance' 'reasonableness in Commencing, Maintaining and Discontinuing Proceedings' 'preliminary Discovery to Identify a Potential Respondent' 'journalist Source Confidentiality' 'privacy Act 1988 (cth)']

Case Brief

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Procedural Posture

Application for Preliminary Discovery; Costs Following Discontinuance / Heard on the Papers After Notice of Discontinuance

Legal Issues

  1. 1 ['Whether costs should be ordered after the preliminary discovery proceeding was discontinued before hearing.' 'Whether Mr Fisher acted reasonably in instituting, maintaining and discontinuing the proceeding.' 'Whether Mr Houston acted unreasonably by failing to disclose earlier that the source of the telephone number was an individual acting in a personal capacity.' "Whether ethical or professional constraints justified Mr Houston's refusal or delay in providing information about the capacity in which the source acted."]

Ratio Decidendi

Mr Fisher reasonably commenced the preliminary discovery application after making inquiries and giving Mr Houston two opportunities to respond, and reasonably discontinued once Mr Houston's affidavit showed the source was an individual acting in a personal capacity. After receiving Mr Fisher's written submissions on or shortly after 9 July 2012, Mr Houston knew the proposed Privacy Act claim depended on the capacity in which the source acted and could have disclosed that capacity without identifying the source. His delay caused additional preparation costs, so he was ordered to pay Mr Fisher's costs incurred after 16 July 2012.

Court Disposition

Mr Houston was ordered to pay part of Mr Fisher's costs after discontinuance of the proceeding.

Orders

  • ["The respondent pay the applicant's costs of this proceeding incurred after 16 July 2012."]