FEDERAL COURT OF AUSTRALIA

Oztech Pty Ltd v Public Trustee of Queensland (No 4) [2016] FCA 268

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for transcriptions of the file notes comprising pages 369 to 908 of Exhibit AKB-3 to the affidavit of Amanda Kim Banton, sworn 22 October 2015, be refused.

2.    The costs of and incidental to the interlocutory application filed by the applicant on 27 November 2015, including the hearing on 10 December 2015, be the applicant’s costs in the cause.

3.    Other than as provided by the operation of Order 2, there be no order for costs of and incidental to the interlocutory application filed by the applicant on 22 October 2015.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

1    On 10 December 2015, I heard applications by the applicant for leave to amend its amended originating application and its statement of claim, and for further discovery from the respondent. The application for leave to amend was brought by an interlocutory application filed on 27 November 2015 (the leave to amend application). The application for further discovery was brought by an interlocutory application filed on 22 October 2015 (the further discovery application).

2    On 23 December 2015, I made orders granting leave to the applicant to amend its statement of claim, provided certain conditions were satisfied. I refused leave to amend the amended originating application. I also ordered that the respondent provide further discovery: Oztech Pty Ltd v Public Trustee of Queensland (No 2) [2015] FCA 1485 (my earlier reasons). My decision to order further discovery followed from my decision that leave to amend the statement of claim should be granted.

3    This left two further matters to be decided. The first matter relates to redactions made to discovered documents, based on the respondent’s claims of legal professional privilege. That question is currently before Perram J for determination, for the reasons I expressed at [96] of my earlier reasons.

4    The second matter relates to the applicant’s application to be provided with transcriptions of a very large number of handwritten file notes that have been produced on discovery. I heard argument on that question on 11 February 2016. My determination of that question is dealt with in these reasons.

5    Finally, the applicant seeks its costs of and incidental to the hearing of the leave to amend application.

The question of transcriptions

6    The applicant seeks an order that the respondent provide a transcription of each file note comprising pages 369 to 908 of Exhibit AKB-3 to the affidavit of Amanda Kim Banton, sworn on 22 October 2015. The file notes were prepared by the respondent’s solicitors. The applicant says that its solicitors are unable to read “a number” of these file notes.

7    In order to advance the debate on this question, the applicant provided, during the course of the hearing, a random sample of the file notes it says its solicitors cannot read. I must say that, at the hearing, I did not have any real difficulty in reading this sample. I accept that a degree of study was necessary. However, the task was by no means impossible. I can only conclude, based on the sample given to me, that the difficulties professed by the applicant’s solicitors are exaggerated. After I sought to demonstrate that proposition by reading out loud those parts of the samples to which my attention was directed, counsel for the applicant suggested that, perhaps, the applicant might come back with a different selection and that the broad form of the order now sought could be confined. I propose to deal with the application in its present form which, in my view, should be refused, simply on the basis that the handwriting to which my attention was directed is not such that it cannot be read with reasonable effort.

8    The applicant referred to Reid v Wright [2014] NSWSC 904. In that case, a notice of motion was filed seeking an order that certain file notes of a solicitor, who was the defendant in the proceeding, be transcribed. The file notes had been produced in answer to a subpoena. The question of transcription was subsequently resolved by agreement, but the plaintiff sought the costs of the notice of motion on the basis that the defendant had no basis upon which to oppose the order for transcription.

9    In the course of determining the question of costs, Harrison J said (at [8]):

This dispute is bordering upon the unseemly. A moment’s reflection by both parties should have led to the resolution of this tedious contest without any recourse to the Court. The Civil Procedure Act 2005 says as much. On balance, however, Ms Reid was entitled to receive a legible copy of Ms Wright’s file notes sooner or later, which is an inevitable conclusion howsoever one looks at it.

10    The applicant sought to adopt that statement. However, Harrison J did not refer to any authority or provide any more detailed reasons for the conclusion to which he came.

11    The applicant also referred to Bayer AG v Harris Pharmaceuticals Limited [1991] FSR 170 (Bayer). In that case, the defendant sought an order requiring the plaintiff to provide translations of 83 documents (800 pages) in German, which had been produced on discovery in patent infringement proceedings. Hoffmann J said:

There is no obligation upon the party giving discovery of a document in a foreign language to provide a translation of that document. Mr. Carr suggested that as a necessary part of a party’s obligation carefully to consider the documents in his possession with a view to deciding whether they were relevant or not he should for that purpose have a translation prepared. I do not take that view. It seems to me that a solicitor carrying out discovery can easily either himself be sufficiently familiar with a foreign language or obtain the assistance of an interpreter to give him an oral account of what is in that document sufficiently to enable him conscientiously to fulfil his duties for the purpose of discovery. There is therefore no material upon which the court could have come to the view that the fact that the plaintiffs had listed 83 documents amounting to 800 pages of German in their list meant that either they did not consider them properly or that they had translations of them.

12    The applicant sought to distinguish this case from the present on the basis that, in Bayer, the defendant could avail itself of a translator. The applicant argued that its solicitors were not in the same position. I agree that the translation of a document from one language into another represents a different case.

13    The respondent submitted that the order sought by the applicant was wrong in principle in that it amounted to a mandatory injunction against non-parties (namely, the solicitors who created the file notes) to create new documents that did not previously exist. The respondent said that his obligation was to disclose documents, not create new documents.

14    The respondent referred to Paddick v Associated Newspapers Ltd [2003] EWHC 2991 (QB). In that case, the claimant sought an order that the defendant provide transcripts of interviews, the audio tapes of which had already been disclosed. Apparently, the recordings were of poor quality. The defendant agreed to provide the transcripts. The only question was, once again, the costs of the application to provide the transcripts. Tugendhat J observed that if he had been asked to resolve the dispute on its merits, he would not have found the answer to be obvious. In the result, Tugendhat J awarded costs to the claimant, even though he felt unable to resolve the underlying issue of principle.

15    The respondent also argued that the order sought by the applicant was oppressive in that transcriptions of approximately 539 pages were sought in circumstances where the applicant’s solicitors contended no more than that they were unable to read “a number” of the notes.

16    I do not have to resolve the point of principle involved in the debate between the parties. For the reasons I have given, I am not satisfied that the order that is sought is warranted.

Costs

17    The applicant submits that it succeeded over the respondent’s opposition in obtaining leave to amend its statement of claim. It submits that costs should follow the event. It submits that although leave to amend in certain respects was conditional on particulars being provided, the respondent did not engage the applicant on that issue when voicing his opposition to the applicant’s application in correspondence between solicitors. In effect, the applicant says that it “won” and that the respondent “lost” the leave to amend application and, as that was the substantial question argued on 10 December 2015, the applicant should have its costs accordingly. Further, the applicant submits that the question of whether further discovery should have been provided followed from my conclusion that leave to amend should be granted. The applicant seeks no separate order for costs with respect to the further discovery application.

18    The respondent submits that the costs of the interlocutory applications should be costs in the cause. The respondent submits that it is a mischaracterisation to say that the applicant “won” and the respondent “lost” the leave to amend application. The respondent submits that there was “winning” and “losing” on both sides. The respondent says that, on the morning before the hearing, the applicant withdrew an important concession, namely its concession that the new claims it was seeking to advance were statute barred. The respondent says that the withdrawal of that concession changed the debate that then took place. The respondent says that its original objection to leave being granted to amend was not simply based on issues of prejudice and delay. The respondent argues that the applicant should not be entitled to take advantage of its own change of tack to bolster its claim for costs.

19    As to the question of the need for particulars, the respondent accepts that it did not engage the applicant in correspondence on this question when articulating his objections. However, the respondent says that the inadequacy of particularisation of the proposed amendments was addressed in his written submissions, provided to the applicant some days before the hearing. The respondent says that the applicant should have been in a position to deal with these particular objections at the hearing.

20    The respondent accepts that the further discovery application depended on the outcome of the leave to amend application. He submits, nevertheless, that considerable costs were incurred in that regard and that my earlier reasons recognised (at [93]) my lack of satisfaction that the respondent had misapprehended his discovery obligations, as the applicant had contended.

21    In my view, the applicant achieved substantial success in the leave to amend application and an order for costs should be made which reflects that position. It is true that the applicant changed the landscape of the hearing to some extent by the withdrawal of its concession. But, even so, the respondent proceeded to contest the leave to amend application. It was a broadly-based opposition. To an extent, the respondent was successful in that opposition. For example, leave was not granted to the applicant to amend its pleading to the extent that it sought. Further, some amendments were allowed conditionally—a matter on which the parties are soon to be locked in further debate. Moreover, the applicant was not permitted to further amend its amended originating application. Nevertheless, the applicant achieved an overall victory on the application for leave to amend and is justly entitled to an order for costs in its favour. I think, however, that the appropriate order is that the costs of and incidental to the application for leave to amend, including the hearing on 10 December 2015, be the applicant’s costs in the cause. In my view, this will achieve the appropriate balance between the relative degrees of success each party had.

22    As I have noted, the applicant does not seek a separate order for costs of and incidental to the further discovery application, although further discovery was ordered. The order for costs I propose to make will include the debate on 10 December 2015, such as it was, on whether further discovery should be ordered. It seems to me that, save to that extent, each party should bear its own costs of the further discovery application. Accordingly, there will be no order for costs of the further discovery application.

Associate:

Dated:    17 March 2016