Bryson v Casey

SIMPSON J : On 19 July 2002 I delivered judgment in relation to an application by the defendants that the plaintiff give further and better answers to a notice to answer interrogatories: Bryson v Casey [2002] NSWSC 636; unreported, 19 July 2002.

Although there were some disputed interrogatories which I did not direct the plaintiff to answer, the defendants were substantially successful in their application. The defendants, accordingly, now seek the costs of the application. The simple basis for the application for costs is the substantial success they enjoyed.

There were some unusual elements to the application. The interrogatories administered, and those which I ordered to be the subject of further and better answers, were vastly in excess of those envisaged by the Supreme Court Rules. In part, this came about by the agreement of the parties.

In response to the defendants’ application, the plaintiff contends that no order should at this stage be made and that the costs of the interrogatories should abide the trial. This is not because the costs of the application would necessarily fall to be decided in line with the result of the trial, but because it will only be at the conclusion of the trial that the utility of the interrogatories can be assessed. I think there is considerable merit in this submission. Answering the interrogatories will be a lengthy, time consuming, and therefore costly exercise. If it should emerge that little or no use is made of the interrogatories, then I see no reason why the plaintiff should pay the costs, even though he was largely unsuccessful in resisting the order sought by the defendants. It is only at the conclusion of the proceedings that a full picture, that will give an indication of the fairness and justice of the situation, will be available.

Accordingly, I propose to reserve the costs of the application for further and better answers to interrogatories.

The defendants have sought, by written submission, additional orders, these being an order that the plaintiff provide verified answers to the interrogatories identified in paragraph 93 of my judgment of 19 July 2002 on or before 16 September 2002; and that the matter be listed for directions in the Registrar’s Defamation List on 23 September 2002.

These orders were sought in written submissions filed on behalf of the defendants and dated 23 July 2002. The plaintiff’s submissions bear the same date, and do not, accordingly, address this application. It seems to me that I should make the orders sought, unless I am advised by the plaintiff that there is some opposition, and any reasons for such opposition. Accordingly, the orders I make are that: (i) the plaintiff is to provide verified answers to the interrogatories identified in paragraph 93 of the judgment of 19 July 2002 (NSWSC 636) on or before 16 September 2002; (ii) the costs of the defendants’ application that the plaintiff provide further and better answers to interrogatories be reserved; (iii) the matter is listed for direction in the Registrar’s Defamation List on 23 September 2002; (iv) I grant liberty to the parties to apply on seven days’ notice.