Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited (No 3)

1. [1]

   In two judgments I gave on 21 November 2024 and 18 December 2024, I determined two notices of motion, one by the plaintiff and one by the defendants in relation to subpoenaed documents: Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited [2024] NSWSC 1462 and Topine v Canterbury Bankstown Bulldogs Rugby League Club Limited (No 2) [2024] NSWSC 1607. In those judgments I did not deal with the question of the costs of the motions because no submissions had been made in that regard. On 18 December 2024 the parties agreed that short written submissions should be lodged by each party, and I should determine costs on the basis of those submissions without any further oral hearing.

2. [2]

   The plaintiff seeks an order that the defendants pay the plaintiff’s costs of and incidental to the motion he filed and an order that those costs be paid on an indemnity basis and paid forthwith. In relation to the defendants’ notice of motion the plaintiff seeks an order that the defendants pay 50% of the plaintiff’s costs of that motion.

3. [3]

   The defendants submit that with respect to the plaintiff’s notice of motion, the parties ought to bear their own costs, and with respect to the defendants’ motion, the plaintiff ought to pay the defendants’ costs.

4. [4]

   In my first judgment I found that the subpoena addressed to Mr Reslan, the plaintiff’s solicitor, should be set aside as to four of the recipients. The issues concerning the health care professionals, being the balance of the recipients of that subpoena were then considered in conjunction with subpoenas issued to the health care professionals directly. In that regard I found that privilege had been waived in respect of a number of the documents.

5. [5]

   What was left outstanding was a consideration of the claim by the plaintiff under s 126B of the Evidence Act 1995 (NSW). However, in my first judgment I determined, favourably to the plaintiff, that the procedure to be followed in relation to the claim for privilege under s 126B should be the procedure adopted in public immunity cases. Ultimately, only seven pages of a much larger collection of documents were said to be subject to the privilege under s 126B. In my second judgment I determined that there should be redactions on six out of seven of those pages but that the pages should otherwise be made available for inspection by the defendants.

6. [6]

   The plaintiff submitted that my findings in [29] of my first judgment led to the conclusion that there were no reasonable prospects of success for the defendants in resisting the motion to set aside the subpoena to Mr Reslan. The plaintiff also relied on correspondence annexed to Mr Reslan’s affidavit of 26 August 2024 filed in support of the motion to set aside the subpoena. The plaintiff relied on principles set out in Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 which applied Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432. In that regard, the plaintiff submitted that each one of the three relevant considerations applied, being that:

7. [7]

   In relation to the defendants’ motion, the plaintiff submitted that the second judgment which upheld some of the plaintiff’s claims under s 126B means that the plaintiff has been partly successful in relation to documents subpoenaed from both Mr Reslan and the health care professionals. In that way the defendants should pay 50% of the plaintiff’s costs of the defendants’ motion.

8. [8]

   The defendants submitted that the plaintiff’s motion resulted in a mixed outcome being approximately equal measures of success. In those circumstances, the defendants submitted that each party should bear their own costs.

9. [9]

   In relation to the defendants’ motion, the defendants accepted that the plaintiff obtained some measure of success, but they submitted that it was minimal in that they were only a small number of redactions on six pages, and that was far outweighed by the significant costs incurred by the parties. The defendants submitted that the plaintiff ought to pay the defendants’ costs of the defendants’ motion because the approach proposed by the plaintiff, which the defendants labelled a page turn exercise, unnecessarily necessitated a further hearing day because the plaintiff was not in a position to undertake that exercise at the first hearing. The defendants submitted, secondly, that such an exercise was only proposed without notice and for the first time orally at the hearing on 11 October 2024.

10. [10]

    The defendants submitted that it was only at the second hearing that the plaintiff raised the issue of his relationship with various family members being harmed, and that was not the basis upon which the plaintiff had pressed his objections at the hearing on 11 October 2024. In that way, there was a shift in the approach at the second hearing. There was also the leading of fresh evidence without any prior notice at the second hearing.

11. [11]

    Finally, the defendants submitted that on no view should the defendants pay the plaintiff’s costs of the defendants’ motion where the evidence which was ultimately redacted was not disclosed to the defendants.

Consideration

1. [12]

   Rule 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

2. [13]

   Neither party made any reference to this rule although it has been described as the “starting point as to what the costs order is to be unless that outcome is displaced by a discretionary decision”: Rees J in Wilson v Gilles (No 2) [2020] NSWSC 658. In Mundi v Hesse [2018] NSWSC 1548 Rees J also said at [58]:

3. [14]

   Accordingly, it must first be ascertained if some discretionary consideration means that subr (1) should be displaced. In my opinion it should. The motions were heard over two days. Each party had a measure of success, as I will discuss below. I do not consider that it would be fair to the party who is ultimately unsuccessful in the proceedings to bear all the successful party’s costs of those motions. Further, to the extent that the trial judge may be asked to modify a general costs order in relation to the costs of the motion, it will be more difficult for that judge, who did not hear the motions, to do so where the parties’ success on the motions has been mixed. It is more consistent with the efficiency that s 56 of the Civil Procedure Act 2005 (NSW) demands that I, as the judge who heard the motions, should do so.

4. [15]

   The defendants correctly submit that where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion, and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.

5. [16]

   Viewed overall, both parties had a measure of success on these two motions. The plaintiff was successful in having the defendants’ subpoena set aside in relation to half of the enumerated recipients. On the defendants’ motion, the plaintiff had some success under s 126B in having portions of six documents redacted. Moreover, the plaintiff was successful in his approach to the procedure to be adopted for determining what, if any, redactions should be made to documents which were prima facie privileged. On the other hand, the defendants successfully showed that privilege had been waived in relation to documents sought in the subpoena addressed to Mr Reslan in respect of communications with the health care professionals, and in relation to documents produced by the health care professionals.

6. [17]

   In my opinion, the need for a second hearing, and a second judgment, was not brought about by the fault of the plaintiff. Rather, the matters that I determined in the first judgment needed to be determined first before the second hearing could take place. In particular, it was necessary for me to determine the correct procedure to be followed at the second hearing. Whilst it is the case that the plaintiff adduced additional evidence at the second hearing that had not been foreshadowed earlier, that evidence was not the reason the second hearing had to be held.

7. [18]

   Nor do I consider that the defendants behaved unreasonably in issuing the subpoena to Mr Reslan to the extent that indemnity costs should be ordered or that an order for costs should be made and that those costs should be payable forthwith.

8. [19]

   In relation to the plaintiff’s application that any costs the plaintiff is awarded should be payable forthwith, the starting point is r 42.7(2) UCPR. Some good reason needs to be demonstrated to displace that rule. In In the Matter of Elsmore Resources Limited [2014] NSWSC 1390 Black J said at [5]:

9. [20]

   In Hargood v OHTL Public Company Ltd (No 2) [2015] NSWSC 511, I said:

10. [21]

    I do not consider that the determination of the motions falls within the first of the principles discussed in Fiduciary Ltd and in Pavlovic. So much is clear from what was determined as a preliminary issue in Pavlovic. Further, whilst it is likely that there will not be final hearing of the matter until later in 2025, there has not been particular delay which would justify the making of an order under r 42.7(2). Further, no evidence has been led by the plaintiff relating to his impecuniosity which might otherwise have justified an order for costs to be paid forthwith: Hargood at [9].

11. [22]

    However, the question of payment forthwith does not arise because of the view I have reached. Given the mixed success enjoyed by both sides in the dispute, I consider that the appropriate order is that each of the parties should bear their own costs of both motions.

12. [23]

    I make the following order:

    1. (1)

       In respect of the plaintiff’s amended notice of motion filed 5 September 2024 and the defendants’ notice of motion filed 4 September 2024, there should be no order as to costs to the intent that each of the parties bear their own costs of each motion.