ASIC v Rich [2004] NSWSC 844

ASIC v Rich [2004] NSWSC 844

ASIC was ordered to pay the first and fourth defendants' costs of the adjournment applications and costs thrown away because ASIC accepted responsibility and the adjournments resulted from ASIC's discovery mistakes. For the broader production and discovery disputes, ASIC's privilege mistakes and inadequate discovery justified a costs order, but the defendants' belated initiation of extensive production demands close to trial, the evolving nature of the disputes, and the outcome before White J meant they should recover only 50% of their costs. The burden was placed on ASIC alone because the decisive factors favouring the defendants concerned ASIC's mistakes about privilege, not PwC's conduct.

Jurisdiction
Australia
Judgment Date
13 September 2004
Procedural Posture
Interlocutory Costs Application in Supreme Court of New South Wales Equity Division Proceedings / After Postponement of the Final Hearing; Costs Applications Determined on Written Submissions
Outcome
Costs orders made against the plaintiff; interlocutory applications by ASIC and PricewaterhouseCoopers dismissed.
Legal Topics
['costs of Adjournment Applications' 'costs Thrown Away' 'notices to Produce' 'subpoenae' 'discovery' 'litigation Privilege' 'client Legal Privilege' 'assessment and Payment of Costs Forthwith']
['practice and Procedure' 'costs' 'discovery and Production of Documents'] ['costs of Adjournment Applications' 'costs Thrown Away' 'notices to Produce' 'subpoenae' 'discovery' 'litigation Privilege' 'client Legal Privilege' 'assessment and Payment of Costs Forthwith']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Interlocutory Costs Application in Supreme Court of New South Wales Equity Division Proceedings / After Postponement of the Final Hearing; Costs Applications Determined on Written Submissions

Legal Issues

  1. 1 ["Whether ASIC should pay the first and fourth defendants' costs of adjournment applications heard on 29 July and 23 August 2004 and costs thrown away by reason of those adjournments." "Whether ASIC and PwC should pay the first and fourth defendants' costs of interlocutory applications and hearings concerning discovery and production of documents." 'Whether the costs of the adjournment applications should be assessed and paid forthwith.' 'Whether any costs order for the production and discovery issues should be borne by ASIC alone or also by PwC.']

Ratio Decidendi

ASIC was ordered to pay the first and fourth defendants' costs of the adjournment applications and costs thrown away because ASIC accepted responsibility and the adjournments resulted from ASIC's discovery mistakes. For the broader production and discovery disputes, ASIC's privilege mistakes and inadequate discovery justified a costs order, but the defendants' belated initiation of extensive production demands close to trial, the evolving nature of the disputes, and the outcome before White J meant they should recover only 50% of their costs. The burden was placed on ASIC alone because the decisive factors favouring the defendants concerned ASIC's mistakes about privilege, not PwC's conduct.

Court Disposition

Costs orders made against the plaintiff; interlocutory applications by ASIC and PricewaterhouseCoopers dismissed.

Orders

  • ["Order that the plaintiff pay the first and fourth defendants' costs of the adjournment applications heard on 29 July and 23 August 2004, and any costs thrown away by reason of those adjournments." 'Order that those costs be assessed and paid forthwith.' 'Order that the interlocutory application by the plaintiff...