FEDERAL COURT OF AUSTRALIA

Richmond v Ora Gold Limited [2020] FCA 70

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 3, the applicant do pay the costs of and incidental to the applicant's application for leave to amend in terms of the further amended statement of claim filed 24 September 2019.

2.    The applicant pay the costs thrown away by reason of the amendments to the amended statement of claim dated 12 September 2018.

3.    Each party bear its own costs of the hearing on 31 January 2020 concerning appropriate costs orders consequent upon the amendments to the amended statement of claim, including the costs of written submissions and affidavits received on that application.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In May 2018, Mr William Richmond commenced proceedings in this Court against Thundelarra Limited (now named Ora Gold Limited) (Thundelarra) and Sandfire Resources NL (now named Sandfire Resources Limited) (Sandfire). The proceedings concern an area of land known as Red Bore at Doolganna, east of Meekatharra in Western Australia. Mr Richmond was granted a mining lease over Red Bore in November 2009.

2    It appears that in April 2010, Mr Richmond entered into an agreement with Thundelarra which provided for terms upon which Thundelarra could earn a 60% interest in a mining venture on the Red Bore tenement. Under the terms of the agreement, in order to earn the interest, Thundelarra had to discover within two years a resource of a specified kind by exploration on the tenement at its cost.

3    Thereafter, Thundelarra claimed to have discovered a resource of the specified kind. There was a dispute between Thundelarra and Mr Richmond as to whether such a resource had been discovered. In proceedings in the Supreme Court of Western Australia, Thundelarra was successful in its claim that it had discovered the resource and obtained orders requiring the transfer of the 60% interest. Mr Richmond says that to meet the costs order against him in those proceedings he reached an agreement with Thundelarra that required him to sell down his interest in the tenement to Thundelarra. As a result, he now retains only a 10% interest in the venture at Red Bore. However, in 2017, by the exercise of a right of pre-emption under his agreement with Thundelarra, Mr Richmond secured rights to undertake exploration at Red Bore and, in certain circumstances, to require Thundelarra to transfer a 75% interest in the venture to Mr Richmond. The rights secured by pre-emption were at a cost to Mr Richmond of $1.5 million plus a commitment to expend a further $1.5 million on exploration at Red Bore.

4    Mr Richmond alleges that Sandfire undertook unlawful exploration on Red Bore that occurred both before and after the mining lease for Red Bore was granted to Mr Richmond. He says that the results of unlawful exploration by Sandfire on the tenement were provided to Thundelarra. He also says that further unlawful exploration was undertaken as part of a trip by two geologists working for Thundelarra. One of those geologists was said to have known of the earlier unlawful exploration undertaken by Sandfire having co-authored a report based on that work (Geologist). On that basis, Mr Richmond says that the ore body at Red Bore was discovered by the unlawful exploration on the tenement rather than the performance of any obligation under the agreement that he made with Thundelarra. He also says that in breach of fiduciary duties owed by Thundelarra to Mr Richmond and also in breach of good faith and other obligations of Thundelarra under its agreement with Mr Richmond the results of the exploration were not disclosed to Mr Richmond. He also claims that the unlawful exploration was actively concealed from him. He says that had he known the true position he would have terminated the agreement with Thundelarra and would have sought to sell a 100% interest in the Red Bore tenement. Also, he would not have incurred considerable costs in mitigating his position by exercising the right of pre-emption.

5    Mr Richmond also claims that the conduct of Thundelarra was unconscionable and that Sandfire was knowingly concerned in that conduct. Claims of deceit are also made against Sandfire which conduct is alleged to have facilitated the concealment of the unlawful exploration and its use by Thundelarra.

6    The original pleading filed by Mr Richmond in support of his claim was first amended more than three months after the original pleading was filed. Despite that amendment, the pleading remained long and difficult to follow. At some points it made overly detailed references to matters of evidence the significance of which was difficult to understand. At other points the pleading was unduly brief. There were logical disconnections in the structure of the pleading. There were numerous allegations of misleading and deceptive conduct, but it was difficult to understand the particular respects in which they were said to have had adverse consequences for Mr Richmond beyond being evidence of the overall claim that the unlawful exploration had been concealed. There were also numerous allegations of breaches of the agreement. The breaches were said to have had consequences for the conduct of the Supreme Court proceedings in respects that made it unclear as to whether there was an indirect challenge to that decision. There were complaints that the unlawful exploration involved trespass to Red Bore at a time before Mr Richmond held his mining lease and complaints about the Mines Department being misled about the exploration. It was difficult to follow how those complaints were said to give rise to actionable claims on the part of Mr Richmond.

7    Thundelarra and Sandfire raised detailed objections to the amended pleading. At a case management hearing on 5 December 2018, I observed that the amended pleading would benefit from a wholesale revision. I made orders for a minute of a proposed further amended pleading to be served by 1 February 2019. A minute was filed on 6 February 2019. It was not a substantial re-pleading of the claims. The respondents maintained their objections.

8    An extended case management conference was convened for 23 May 2019 to consider the nature of the case that was sought to be advanced. Mr Richmond was directed to file a brief case outline to assist in that process. Until the outline was filed it was difficult to discern from the amended pleading the case summarised in the outline. The outline provided a clear overview of the nature of Mr Richmond's case. Its clarity confirmed the need for further revision of the pleading.

9    The case outline also explained that the notebook of the Geologist had been subpoenaed but no document had been produced in response to the subpoena. It said that: 'Mr Richmond has since learned that Thundelarra's solicitors hold that notebook for Thundelarra' but had declined to produce it to the solicitors for Mr Richmond. After being pressed, counsel for Thundelarra accepted that the notebook should be produced. It was subsequently produced on 30 May 2019. Production of the notebook led to a chain of inquiry which ultimately resulted in Mr Richmond making further claims as to the extent of the unlawful exploration undertaken on Red Bore.

10    Particular difficulties with the minute of further amended pleading, including its prolix nature and extensive reference to matters of evidence, were raised at the extended conference. The matter was adjourned to a further case management hearing conference to allow those acting for Mr Richmond to consider, in light of the matters raised in the conference, whether to make further amendments or to stand behind the minute. At the next case management hearing, counsel for Mr Richmond indicated that further amendments would be made. On 18 July 2019, a new minute was delivered. In substance, it was a complete re-pleading of the case. In broad terms, it relied upon the same factual matters and the same course of events. However, the structure of the pleading was completely redrawn as was the form in which the causes of action were articulated. Many of the individual claims of misleading and deceptive conduct and the separate allegations of breaches of the agreement were removed. Instead, the same matters were relied upon as material facts to support a more focussed case. The new minute reflected the case outline that had been provided for the purposes of the extended case management hearing. It remained long, perhaps unduly so, but it conformed to usual pleading conventions and the significance of factual allegations for each cause of action was readily discernible.

11    A formal application for leave to amend in terms of the new minute was made by Mr Richmond. In the result, leave to amend substantially in terms of the new minute (revised in some further respects) was granted by consent, with the question of costs associated with the application reserved for later determination if agreement was not reached as to the appropriate costs order consequential upon the amendment.

12    The parties were unable to reach agreement as to the appropriate costs order. For Mr Richmond it was submitted that the appropriate order is that the costs be reserved until after trial. For Thundelarra and Sandfire it was submitted that there should be an order that Mr Richmond pay the costs of the application to amend and any costs thrown away by reason of the amendment. In written submissions, a form of orders was proposed that would identify the costs thrown away. However, oral argument for the two respondents proceeded on the basis that the identification of costs thrown away was a matter to be dealt with at the time of assessment of such costs. The respondents sought in addition an order that the costs of the application to amend and the costs thrown away be assessed and paid forthwith.

13    For the following reasons, there should be an order that Mr Richmond pay the costs of the application to amend and the costs thrown away by reason of the amendment, save that each party should bear its own costs of the hearing on 31 January 2020. The submission that there should an order for costs to be assessed and paid forthwith should not be accepted.

General principles

14    The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). The discretion to award costs is unconfined, but must be exercised judicially, that is according to relevant considerations and taking account of the contextual features and facts of the litigation: Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; (2011) 197 FCR 113 at [4]. Settled principle guides the exercise of the discretion: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [38]. Generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]. This may be expressed in the following terms as stated in IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22 at [8]:

… the compensatory principle informs the usual approach to costs (costs follow the event), an approach which generally is not displaced other than in special circumstances, with such circumstances to be assessed in the context of the particular case.

15    Where a party is granted leave to amend its pleadings in circumstances that have not been occasioned by the conduct of another party, it is usual to exercise the discretion by making an order that the amending party pay the costs of any other party that are thrown away by reason of the amendment. Orders of that kind ensure fairness by protecting all parties to litigation from the burdens of having to incur additional costs unnecessarily and act as a discipline to all parties to properly and carefully consider pleadings when they are prepared. Recognition of the fact that an order for the costs occasioned by the amendment is made to overcome the injustice to the amending party's opponent is to be found in the reasoning of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [98]-[99]. Indeed, it is common for a concession to be made that there should be an order for costs thrown away as a condition of an order granting leave to amend: see, for example, Gloucester Shire Council v Fitch Ratings, Inc (No 2) [2017] FCA 248 at [242]; Fewin Pty Limited v Prentice [2018] FCA 852 at [45]; and Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 at [118]. As to the recognition that an order for costs thrown away may not be made where the other party has acted unreasonably: see Media Ocean Limited v Optus Mobile Pty Limited (No 6) [2009] FCA 1319 at [34]-[35]

16    The relevant principles were summarised in Stanley v Layne Christensen Company [2006] WASCA 56 at [51]-[52] by Wheeler JA. Having referred to an argument to the effect that the general rule is that where a party is seeking the indulgence of the Court to amend its pleading, that party will be required to pay the costs of the application, her Honour then said:

The general rule is, and should remain, that where a party is seeking the indulgence of the Court, that party will be required to pay the costs of the application, including costs thrown away, and will not normally receive the costs of the application. However, it is also a normal rule that the Court will have regard to the extent to which it might be said that costs were unnecessarily incurred by a party, and will have regard to the reasonableness of the party's conduct in determining how costs should be awarded. In particular, where a contested application, even for an indulgence, is unnecessary because a party acting reasonably would have consented to appropriate orders, the party who has caused the costs to be unnecessarily incurred will not obtain its costs of such a proceeding merely because the application is for some indulgence.

Should costs be reserved until after trial?

17    For Mr Richmond, the following matters were advanced as to why the costs should be reserved until after trial:

(1)    The nature of the case advanced by Mr Richmond was a claim of deceit and deliberate concealment of the matters upon which the claim was based which meant that it may be appropriate for the respondents to have to bear all the costs of the action if Mr Richmond was successful.

(2)    The concealment meant that the claim was brought at a time when it may be expected that there would be a pleading of the case in greater detail in anticipation of the possibility that limitation points may be raised by way of defence and that was a matter that provided an explanation for the length of the original pleading.

(3)    By reason of the informational asymmetry that arises in a case where it is alleged that matters were concealed from the applicant there will be a need to amend, but it will be difficult to properly attribute responsibility for amendments by way of addition or change to the case as pleaded until the outcome of the trial is known.

(4)    The amendments dealt with matters that had been raised in the course of proceedings.

(5)    The concealment meant that Mr Richmond would be expected to be afforded some latitude as to costs orders consequent upon amendments because it was to be expected that new allegations would be added as disclosure was provided and the addition of new allegations might be expected to lead to 'restructuring and re-expression' of the case as a whole.

18    I do not accept these submissions. For the most part, they proceed from an inadequate characterisation of the nature of the further amendments for which leave was ultimately given. In my assessment, they are a substantial re-pleading of the case that was inevitable by reason of the failure of the original pleading to conform to the requirements of proper pleading. It is correct that they did not manifest a substantial change to the nature of the case. But they were necessary for the pleading to perform its function of providing a logical, clear and concise statement of the nature of the case that the respondents would have to meet at trial. Delay in making the amendment was caused to a considerable degree by the failure to acknowledge that position. In the result, the period of delay overlapped to some degree with delay occasioned by the conduct of Thundelarra in not providing the Geologist's notebook despite it being sought by subpoena. However, that was not a matter that changed the major reason for the ultimate amendment or its form. Changes to deal with additional material facts consequent upon the forensic investigations after the production of the Geologist's notebook may be found in a number of places in the pleading, but they are additions within a fundamentally altered structure.

19    To the extent that the amendments can be shown to be the consequence of matters disclosed subsequent to the commencement of proceedings then those new matters will not result in costs thrown away by reason of the amendment. They will introduce new claims to be addressed by amended pleadings. Not having been dealt with in previous pleadings they will not give rise to costs thrown away. Counsel for the respondents, correctly in my view, argued the matter on the basis that dealing with such new claims would not give rise to costs thrown away. Their concern was the need to deal with a number of iterations to the proposed amendment, to understand whether and where there had been material changes to the underlying nature of the case and the need to prepare a new defence in response.

20    Otherwise, as to the proposition that the assessment as to whether Mr Richmond should bear any of the costs thrown away should be deferred until after trial by reason of the allegations of concealment that are at the heart of the claim, I do not accept that such an approach is appropriate. The nature of the claim does not mean that a claimant is relieved of the responsibility to plead the case properly. No authority was cited for the proposition that the costs occasioned by an amendment in a case of the present kind should abide the outcome by reason of the subject-matter of the claim. The argument advanced seemed to depend upon the assertion that in some way the conduct of the respondents explained or justified the form of the original pleading. No example was provided as to a particular respect in which the amendments to the original pleading were a consequence of the nature of the claim advanced. Indeed, I can see no reason why a particular aspect of the way in which the case is now pleaded could not have been articulated at the outset by reason of the conduct of the respondents (allowing, of course, for the introduction of some additional material facts).

21    Also, there are inconsistencies evident in the arguments advanced for Mr Richmond. On the one hand, it is said that there was a need to plead the case fulsomely by reason of possible limitation defences and that explains its length and detail. On the other hand, it is said that the case as now pleaded is the same as the original case (being the case explained in the outline provided for the extended conference) but it has been restructured and re-expressed now that some further factual allegations have been added. The resolution of those inconsistencies is to be found in the fact that a major explanation for the further amendment was the need to conform to the proper requirements of pleading practice.

22    As I have noted, the respondents accept that there are no costs thrown away by the introduction of new matters that have emerged as a result of disclosure since the commencement of the proceedings. Their complaint focusses upon the costs that had to be incurred by reason of the wholesale nature of the revision to the pleading and otherwise they say it is a matter for assessment as to whether there were costs thrown away.

23    I do not accept that a fair and proper exercise of discretion in this case requires a knowledge of the outcome at trial. Irrespective of that outcome, where costs have been occasioned by an applicant, in effect, starting again in pleading its case, there are wasted costs that ordinarily should be borne by an applicant even if the applicant is ultimately successful. The ultimate judgment of the merit or strength of the claim advanced is not a reason for deferring the decision. If it was to be deferred then one of the questions to be considered in deciding whether to make an order for costs thrown away would be the course of events that led to the pleading being amended. Those matters are best considered at this stage of proceedings where they are known to the Court and readily addressed. By the time of trial, the Court will be focussed upon the case as presented not the history of the events by which the claim as opened and presented at trial came to be formulated. The quantification of costs thrown away is a different matter that is addressed below in the context of considering the submission by the respondents that the costs should be assessed and paid forthwith.

24    Finally, I do not accept that matters relating to expected limitation defences provide any real explanation for the form of the original pleading and the need for its subsequent extensive amendment.

The Geologist's notebook

25    As to Thundelarra, the application for costs to be reserved was supported by a further submission to the effect that it had acted unreasonably in relation to the production of the Geologist's notebook. I accept (and it was not really disputed) that some of the amendments made by the new pleading introduce matters discovered by reason of the production of the Geologist's notebook. However, for reasons I have given that was neither the major reason for the amendments nor are the costs of the respondents in dealing with the new matters raised as a result of the notebook costs thrown away.

26    It was suggested that the conduct of Thundelarra in relation to the notebook was a further illustration of the concealment of the true facts. In effect, it was submitted that the approach to the notebook and the extent of unlawful exploration it was alleged to reveal, supported the claim that the nature of the case meant that the costs of the amendment should be reserved until after the outcome of the trial was known. It is possible that the course of events concerning production of the notebook was productive of costs on the part of Mr Richmond that should be awarded in his favour even if he is ultimately unsuccessful. But I am not satisfied that the conduct was of such significance that all the costs associated with the amendments should be reserved until after trial. Otherwise, for reasons I have already given, the concealment aspects of the allegations are not a reason for deferring consideration of the proper costs order until after trial.

The terms of the order for costs thrown away

27    Although written submissions were raised as to the appropriate form of any order for costs thrown away, in the result there was agreement that the order should provide for Mr Richmond to bear the costs thrown away by reason of the amendments made to the amended statement of claim.

Should the order provide for costs to be assessed and paid forthwith?

28    Ordinarily, costs are awarded on the basis that they will be paid when the proceedings have concluded. Approaching the matter in that way avoids the considerable burden of multiple taxations and allows for set-offs as between costs orders made in the course of the same proceeding. In this Court, where lump sum cost assessment are often made, the task of making an overall quantification is also best undertaken when all claims to costs are known.

29    The costs on an interlocutory application must not be taxed until the proceedings have finished: r 40.13, Federal Court Rules 2011 (Cth). However, for reasons given by Perram J in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19, the Court has a discretion to order costs to be assessed and paid forthwith.

30    As to the nature of that discretion, in Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297, Olney J, when considering a similar rule concerning the costs of interlocutory applications stated:

The rule does not suggest any particular criteria by which the court should be guided in approaching such an application, and accordingly I take the view that the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice envisaged by the rule, namely, that an order for costs of an interlocutory proceeding should not entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded.

31    It has been said that the costs of an interlocutory application would only be ordered to be paid forthwith 'in very special circumstances': Vasyli v AOL International Pty Ltd [1996] FCA 804 (Lehane J).

32    In Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727, Besanko J expressed the view that the costs thrown away by reason of an adjournment should only be ordered to be paid forthwith if there was some tactical or reprehensible conduct or possibly substantial delay of a kind that would justify such an order: at [24]. These views accord with a general view that unreasonableness as to the bringing of an application is a reason why there may be an order for costs to be assessed and paid forthwith (see below). In Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347 at [13], Katzmann J referred to Vasyli and Rafferty and counselled against formulating 'hard and fast rules'.

33    The decided cases indicate a range of matters to be considered in deciding whether to make an order for interlocutory costs to be paid forthwith notwithstanding the concerns about multiple taxation and facilitating set-offs. They include:

(1)    whether there has been unreasonable conduct in the bringing of the application: Harris v Cigna Insurance Australia Limited [1995] FCA 1656; (1995) ATPR 41-445 at [16] (Kiefel J); Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1 at [12] (Barrett J); Hamod v State of New South Wales [2007] NSWSC 707 (Simpson J); Dale v Clayton Utz (a firm) (No 3) [2013] VSC 593 at [65] (Hollingworth J); Donnellan v Public Trustee [No 2] [2010] WASC 214 at [94] (Kenneth Martin J); and Rosegum Corporation Pty Ltd v Young, in the matter of Rosegum Corporation Pty Ltd (No 2) [2017] FCA 36 (McKerracher J);

(2)    the capacity of a costs order to stultify proceedings, particularly where they are brought by persons who may be seen (even without specific evidence) to have limited resources: Olson v Keefe (No 4) [2019] FCA 691 at [27] (Bromwich J);

(3)    whether costs thrown away could be more accurately assessed after the determination of the proposed substantive proceeding: Lamond (No 2) [2017] FCA 548 at [18] (Besanko J);

(4)    whether a party will not have the benefit of an award of costs for a considerable period of time: Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 1459; and Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545 (Branson J);

(5)    whether security for costs has been provided: Lynx Engineering Consultants Pty Ltd v The ANI Corporation Ltd (t/as ANI Bradken Rail Transportation Group) (No 3) [2010] FCA 32 at [37] (McKerracher J); and

(6)    whether the interlocutory application concludes a discrete aspect of the proceedings: Australian Flight Test Services Pty Ltd v Minister of Industry, Science and Technology [1996] FCA 1425 at [7]; and Bagley v Pinebelt Pty Ltd [2000] NSWSC 830 (Hamilton J).

34    As to the references to an order being justified by unreasonable conduct, the possibility of an order for costs thrown away to be payable immediately may be an important means by which the Court can discourage unhelpful interlocutory disputation and conduct inconsistent with the responsibility of all practitioners to confine the extent of court hearings to the real issues essentially for the fair, just and prompt resolution of the dispute and to confer with each for the purpose of doing so. In Allstate Life Insurance Co, Lindgren J expressed the view that the power to make an order for costs to be paid forthwith was 'possibly underutilised' and accepted that a history of interlocutory disputes being raised by a party may be a reason for considering whether to make an order for costs to be paid forthwith.

35    The Supreme Court of Western Australia has issued Practice Direction 4.7 which states:

As a general rule, where an order for costs is to be made against a party in interlocutory proceedings, the costs will be fixed and ordered to be paid forthwith or by a particular date. Likewise as a general rule, where costs are ordered to be in the cause, the quantum will be fixed.

That is for a number of reasons. First, as an action progresses, parties have an interest in knowing the quantum of costs awarded to or against them, or the liability for which awaits the cause.

Secondly, the historical practice of ordering costs to be paid 'in any event' does not sufficiently serve the purpose of discouraging ill-considered or needless interlocutory applications. The overwhelming majority of actions settle and the orders are not enforced. The apparent benefit to parties in whose favour such orders are made is illusory.

Thirdly, where actions do proceed to judgment and an order for costs, the subsequent taxation would be simplified if the costs of interlocutory procedures had already been dealt with.

Accordingly, the Court will generally order that interlocutory costs ordered to be paid by a party are to be paid forthwith or by a particular date, rather than in any event.

Further, judicial officers can be expected, in the usual run of routine matters, to fix the costs payable by reference to the attached schedule …, rather than ordering them to be taxed.

36    The Practice Direction 'serves the purpose of discouraging ill‑considered or needless interlocutory applications': Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 at [11] and Huntingdale Village Pty Ltd (recs and mgrs apptd) atf Huntingdale Village Unit Trust v Perpetual Nominees [2013] WASC 352 (S) at [17]. However, even in that context, the Court will decline to award costs to be assessed and paid forthwith where there are concerns about the unfairness of not allowing set-offs: Norilya at [10].

37    In my view, the references in the cases as to unreasonableness as a basis for exercising the discretion to order that costs thrown away be assessed and paid forthwith are intended to capture those cases where there has been a relatively serious failure to observe the approach to the bringing or contesting of interlocutory applications that may be expected to be adopted in accordance with the modern approach to case management. It is not necessary for some form of improper conduct of the kind that might justify indemnity costs to be shown. However, where the order is sought on the basis of a single instance of behaviour that might be considered to be unreasonable then the consequence will need to be significant in order to justify a departure from the terms of r 40.13.

38    Further, it must be borne in mind that the rationale behind the rule that applies in this Court to the effect that interlocutory cost orders are to be assessed after trial should not be undermined. The approach in this Court is different to that followed in the Supreme Court of Western Australia.

39    For the following reasons, I am not satisfied that there should be a departure from the usual approach in this instance.

40    First, this is not a case where Mr Richmond persisted in seeking to justify the original pleading to the point of a contested hearing. After the extended case management conference, the pleading was substantially redrafted with the result that objections to the pleading were no longer maintained. There is no suggestion that those acting for Mr Richmond did not engage with the process of conferral as to matters raised concerning the pleading.

41    Second, there has been no attempt to quantify the possible extent of the costs thrown away. There are also likely to be difficulties in undertaking any such quantification because of the extent to which the factual matters remain as the foundation for the pleading albeit that the way in which those matters are relied upon to support particular causes of action has been changed in significant respects. The task of identifying the nature and extent of costs thrown away will be difficult to undertake in circumstances where there were amendments made at the same time to add new claims and the proceedings have not been finally determined. I do not accept the submission that the costs thrown away will be more easily assessed now than later. This is a reason why such matters are best assessed in a general way as part of the overall process of making a costs assessment when the outcome is known.

42    Third, this is not an instance where a discrete part of the case has been abandoned. It was contended that the amendments made by Mr Richmond had resulted in abandoned claims. However, I do not accept that submission. When account is taken of matters that are pleaded by way of defence, the factual issues and extent of legal issues remain substantially the same. This is not an instance where it has been demonstrated that there is a discrete aspect of the case that has been conceded or abandoned the costs of which might be readily separated at this stage from the overall costs of the proceedings and made the subject of an order for immediate assessment. It is certainly not the case that the amendments as a whole might be described as an abandonment of a significant aspect of the case advanced by Mr Richmond.

43    Fourth, it was contended that the amendments were not explicable by the fact that new material had emerged in the course of the conduct of the proceedings. Rather, the pleadings required amendment by reason of deficiencies in the manner in which they had been pleaded from the outset. There is merit in that submission. However, as I have said, the conduct in relation to the pleading is not of a kind that, in all the circumstances, might be described as unreasonable.

44    Fifth, it was contended that the proceedings are not likely to be resolved for some time and there was delay occasioned by the approach adopted by Mr Richmond to amendment. There is merit in these matters. However, some part of that delay was concurrent with the delay by Thundelarra in providing the Geologist's notebook.

45    Sixth, there is no suggestion of financial risk.

46    Seventh, the task of assessment will be a distraction from the substantive progress of the claim.

47    Eighth, there is some merit in the contention for Mr Richmond that the nature of the case means that there was a forensic task to be undertaken that, in any event, was likely to result in a period of delay while disclosure was obtained and there were consequent changes to the pleading.

48    Weighing these matters with the reasons behind rules such as r 40.13, I decline to order that the costs thrown away be paid forthwith.

The costs of the application to amend

49    As I have noted, an application for leave to amend seeks an indulgence and ordinarily that means that the costs of the application will be awarded in favour of the opposing party. This is not a case where the leave sought has been opposed unreasonably. However, as to the contested hearing, Mr Richmond has been successful in opposing the order for costs to be paid forthwith and the respondents have been successful in their claim for an order for costs thrown away rather than for the costs to be reserved until after trial. There were also some aspects of the position adopted by the respondents as to the form of the orders that might be made specifying the categories of costs thrown away that occasioned costs that were not ultimately pursued.

50    Weighing all these matters, I am of the view that the appropriate order as to the costs of the hearing on 31 January 2020 and the preparation of the submissions and affidavits for that hearing is that each party should bear their own costs.

Associate:

Dated:    6 February 2020