Garrity v Competitive Foods Australia Pty Ltd

The plaintiff in these proceedings, Mr Michael Garrity brought a motion for discovery of documents against the five defendants. The plaintiff seeks final relief for what he claims is the defendants’ misuse of his confidential information. The defendants deny they received any confidential information of the plaintiff, and if they did, they deny that they misused it. The proceedings have not yet been set down for final hearing. The motion for discovery has been heard and determined. The defendants were required to give various classes of discovery to the plaintiff on the motion. The Court has ordered that the parties bring in short minutes of order to give effect to the result of the motion.

The Court invited the plaintiff, as the partially successful applicant on the motion, to put submissions as to whether he wants to apply for the costs of the motion. The applicant represented himself on the motion. The Court indicated to him that should he wish to apply for costs of the motion and were he to be successful, that he may be able to recover some of his out-of-pocket expenses, that being the normal measure of costs for a person who has not engaged lawyers.

The plaintiff declined to seek costs on the motion. But he indicated that he wants the wider costs relief, which is set out in the motion itself. The effect of that claim for costs, as explained in the plaintiff’s written submissions, is that he seeks a payment of $20,000 from each of the five defendants on account of his future costs of the proceedings. He says that he is entitled to this as an indemnity for the cost, inconvenience and unfairness that he says he has been visited upon him because he has been required to litigate these proceedings against the defendants, when he is suffering what he says is a plain injustice.

The Court has explained it to him that, notwithstanding the fact that he has been partially successful on his motion for discovery, that the Court has not yet determined the claims for relief in these proceedings at a final hearing. The standard costs principle is that “costs follow the event”. In this common statement of principle, the “event” means either the whole proceedings or some part of the proceedings that has been determined. The relevant “event” here is the outcome of the motion, not the proceedings, because that is all that the Court has so far determined. The plaintiff says he does not want an order for costs for the outcome of the motion, so the Court will not give him one.

But nor will the Court give him the order for costs of the proceedings that he seeks. He claims an order for costs in his favour (in the amount of $20,000 per defendant) in advance of the Court reaching a result in the proceedings. He seeks to overcome the disadvantage to him of the defendants’ opposition to his claim in this case.

The plaintiff’s submission does not accord with accepted principles of costs in litigation. The applicable principle is set out in Uniform Civil Procedure Rules 2005 (“UCPR”), Part 42.1 and relevant case law. That principle, that “costs follow the event”, reflects a rule of fundamental fairness: that the Court will order costs in favour of a successful party, because the successful party’s costs of the proceedings were caused by the unsuccessful party’s opposition to the successful party’s action.

But in this case the plaintiff has not yet shown success in the proceedings. Therefore, as a matter of fundamental fairness, he is not yet entitled to an order for costs for the proceedings. It may be at the end of the day he is able to establish success. Should he do so, he can then ask for an order for costs proceedings. But until then, in my view, he is not entitled to costs. In effect, the plaintiff is seeking a form of legal aid from the defendants. He is no more entitled to ask for that at this stage of the proceedings than they are entitled to ask it from him because he has sued them.

The plaintiff cited various cases as authority for his claim for costs at this stage. But none of them support his contention that a defendant in proceedings can be required by a plaintiff to pay part of the plaintiff’s costs of the proceedings in advance of the final determination of the plaintiff’s claims for relief in the proceedings.

For those reasons, I will reject the plaintiff’s application for costs of the proceedings, as to $20,000 per defendant. I will otherwise make no order as to costs on the motion. The parties should provide short minutes of order in relation to the discovery to be given.