Procter v Kalivis (No 3) [2010] FCA 1194

Procter v Kalivis (No 3) [2010] FCA 1194

The respondents did not adopt an adversarial approach to the preliminary discovery application generally because they filed and served Lists of Documents without the need for substantial argument, and the Court could not determine at this stage the precise fiduciary or agency obligations alleged by the applicants. Accordingly, excluding the contested motion costs, the respondents' costs would be paid by the applicants if no foreshadowed substantive proceeding was commenced within two months, or the costs would be in the discretion of the trial judge if such a proceeding was commenced. However, paragraphs 2, 3 and 4 of the notice of motion dated 20 November 2009 were contested and the...

Jurisdiction
Australia
Judgment Date
04 November 2010
Procedural Posture
Application for Costs in a Proceeding for Preliminary Discovery Under O 15 a R 6 of the Federal Court Rules / Costs Determination After Preliminary Discovery Lists and a Contested Notice of Motion for Further and Better Discovery
Outcome
Application issued by the applicants on 19 June 2009 dismissed; respondents ordered to pay the applicants' costs of paragraphs 2, 3 and 4 of the notice of motion dated 20 November 2009; remaining costs to depend on whether the applicants commence foreshadowed proceedings within two months.
Legal Topics
['costs Discretion' 'preliminary Discovery Under O 15 a R 6' 'further and Better Discovery' 'adversarial Approach to Preliminary Discovery' 'costs Reserved on Notice of Motion']
['civil Procedure' 'costs' 'preliminary Discovery'] ['costs Discretion' 'preliminary Discovery Under O 15 a R 6' 'further and Better Discovery' 'adversarial Approach to Preliminary Discovery' 'costs Reserved on Notice of Motion']

Case Brief

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Procedural Posture

Application for Costs in a Proceeding for Preliminary Discovery Under O 15 a R 6 of the Federal Court Rules / Costs Determination After Preliminary Discovery Lists and a Contested Notice of Motion for Further and Better Discovery

Legal Issues

  1. 1 ["Whether the respondents should pay the applicants' costs of the application for preliminary discovery." 'Whether the costs of the application for preliminary discovery should instead be paid by the applicants if no substantive proceeding is commenced, or be left to the discretion of the trial judge if such a proceeding is commenced.' "Whether the respondents should pay the applicants' costs of paragraphs 2, 3 and 4 of the notice of motion dated 20 November 2009, on which the applicants were substantially successful." "Whether the respondents' alleged fiduciary or agency relationship with the applicants affected the appropriate costs order."]

Ratio Decidendi

The respondents did not adopt an adversarial approach to the preliminary discovery application generally because they filed and served Lists of Documents without the need for substantial argument, and the Court could not determine at this stage the precise fiduciary or agency obligations alleged by the applicants. Accordingly, excluding the contested motion costs, the respondents' costs would be paid by the applicants if no foreshadowed substantive proceeding was commenced within two months, or the costs would be in the discretion of the trial judge if such a proceeding was commenced. However, paragraphs 2, 3 and 4 of the notice of motion dated 20 November 2009 were contested and the...

Court Disposition

Application issued by the applicants on 19 June 2009 dismissed; respondents ordered to pay the applicants' costs of paragraphs 2, 3 and 4 of the notice of motion dated 20 November 2009; remaining costs to depend on whether the applicants commence foreshadowed proceedings within two months.

Orders

  • ['The application issued by the applicants on 19 June 2009 be dismissed.' "The respondents pay the applicants' costs of and incidental to paragraphs 2, 3 and 4 of the notice of motion dated 20 November 2009." "The respondents' costs of the application referred to in paragraph 1, excluding the specified costs, are to...