Litig8: Cost Quirks - Pre-Action Discovery

Each month as a part of Mills Oakley’s Litig8, we bring to you snapshots of eight key cases, legislative changes or other legal events. The summaries are not comprehensive and do not constitute legal advice. You should seek professional advice before taking any action based on the content of this article.

Part 7 of the March edition of Litig8

In almost every Jurisdiction in Australia there are provisions in Court rules for Pre-Action Discovery. A recent decision of the Court of Appeal of Western Australia confirms the position with regard to costs as such application and in particular, that any costs order made deals with the costs of complying with the orders for pre-action discovery not just the costs associated with the application.

In Kelbush v ANZ (2016) WASCA 14, the Court indicated the proper course in pre-action discovery in the absence of any reason to the contrary is that the party applying for the orders must pay the cost of the application and the cost of complying with any order for any pre-action discovery. This is because the nature of the relief is an indulgence of the Court’s jurisdiction. Further, the Court decides the obligation to pay costs should not be deferred merely because proceedings are later commenced. The costs are assessable and should be paid forthwith upon the making of an execution of orders in relation to discovery.

That being said, the Court also acknowledges the rights of an applicant if it is successful in any consequential proceedings. The Court indicates that whilst the applicant must pay the costs of obtaining and enforcing the order, these may be recouped in an application in any subsequent proceedings depending on the result. Importantly, the Court does not set out in any prescriptive way how such an order may be achieved.

It is a decision which is not tied to the WA Court rules and therefore has application that:

  1. The applicant to pre-trial discovery should pay the costs of the respondent of obtaining and executing a pre-action discovery order
  2. The applicant may make an application in any subsequent proceedings (if they are successful) to recoup those costs as if in effect those costs are part of the substantive actions

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