Cobankara v Australia and New Zealand Banking Group Ltd [2017] FCA 419

Cobankara v Australia and New Zealand Banking Group Ltd [2017] FCA 419

Because ANZ had been uncooperative before proceedings and the prospective applicants were left with little choice but to use compulsory process, but ANZ ultimately participated in mediation and provided the information sought, the just exercise of the costs discretion was for ANZ to pay 50% of the prospective applicants' party/party costs of the preliminary discovery application. Separately, because preliminary discovery is an extraordinary jurisdiction and ANZ provided documents outside any ordinary obligation to do so, the prospective applicants were required to pay ANZ's reasonable expenses of giving discovery and production. Each party was to bear its own costs of the written costs...

Jurisdiction
Australia
Judgment Date
24 April 2017
Procedural Posture
Application for Preliminary Discovery Pursuant to R 7.23 of the Federal Court Rules 2011 (cth) / Determination on the Papers of Costs and Discontinuance After Mediation Resolved the Discovery Issues
Outcome
The preliminary discovery application was resolved in substance; leave to discontinue was granted and costs orders were made.
Legal Topics
['preliminary Discovery Under R 7.23' 'costs Discretion' 'costs of Application Distinguished From Costs of Providing Discovery' 'discontinuance']
['civil Procedure' 'costs' 'preliminary Discovery'] ['preliminary Discovery Under R 7.23' 'costs Discretion' 'costs of Application Distinguished From Costs of Providing Discovery' 'discontinuance']

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Procedural Posture

Application for Preliminary Discovery Pursuant to R 7.23 of the Federal Court Rules 2011 (cth) / Determination on the Papers of Costs and Discontinuance After Mediation Resolved the Discovery Issues

Legal Issues

  1. 1 ['Whether the approach in Re The Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin should govern costs where a preliminary discovery application was resolved without substantive orders.' "Whether the prospective respondent should pay the prospective applicants' costs of the preliminary discovery application." "Whether the prospective applicants should pay the prospective respondent's reasonable expenses of giving discovery and production of documents." 'Whether costs of the written submissions on costs should be awarded to either party.']

Ratio Decidendi

Because ANZ had been uncooperative before proceedings and the prospective applicants were left with little choice but to use compulsory process, but ANZ ultimately participated in mediation and provided the information sought, the just exercise of the costs discretion was for ANZ to pay 50% of the prospective applicants' party/party costs of the preliminary discovery application. Separately, because preliminary discovery is an extraordinary jurisdiction and ANZ provided documents outside any ordinary obligation to do so, the prospective applicants were required to pay ANZ's reasonable expenses of giving discovery and production. Each party was to bear its own costs of the written costs...

Court Disposition

The preliminary discovery application was resolved in substance; leave to discontinue was granted and costs orders were made.

Orders

  • ['The prospective applicants have leave to discontinue the proceeding by filing a notice of discontinuance on or before 1 May 2017.' "The prospective applicants are to pay the prospective respondent's reasonable expenses of giving discovery and production of documents to the prospective applicants." "The prospective...