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  • Unreported Judgment

Integrated Medical Technology Pty Ltd v Gilbert (No 3)

 

[2015] QSC 133

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 3) [2015] QSC 133

PARTIES:

INTEGRATED MEDICAL TECHNOLOGY PTY LTD
(First Plaintiff)
INTEGRATED MEDICAL SYSTEMS PTY LTD
(Second Plaintiff)
v
SHANE ROSS GILBERT
(First Defendant)
JJS TECHNOLOGIES PTY LTD
(Second Defendant)
BUNDABERG RADIOLOGY PTY LTD
(Third Defendant)
JOHN MITCHELL
(Fourth Defendant)
JASON WILDEN
(Fifth Defendant)
BAYSIDE RADIOLOGY PTY LTD
(Sixth Defendant)
BOLSOVER RADIOLOGY PTY LTD
(Seventh Defendant)
BEACHSIDE RADIOLOGY PTY LTD
(Eighth Defendant)

FILE NO/S:

BS161 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application for Costs

DELIVERED ON:

11 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. The costs of the application filed on 4 December 2014 are costs in the proceeding.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – where the plaintiffs applied for an order that the defendants pay the costs of an application for further disclosure of material – where the defendant applied for an order that costs be awarded on the basis of success on issues on the application – whether the court should order costs on the basis of either parties’ arguments 

Uniform Civil Procedure Rules 1999 (Qld), r 5

Integrated Medical Technology Pty Ltd and Anor v Gilbert & Ors (No 2) [2015] QSC 124, related

COUNSEL:

Written submissions of P O’Higgins for the plaintiffs

Written submissions of A Harding for the defendants

SOLICITORS:

McCullough Robertson Lawyers for the plaintiffs

M + K Lawyers for the defendants

  1. Jackson J:  This is the decision on the application for costs of the application decided in Integrated Medical Technology Pty Ltd and Anor v Gilbert & Ors (No 2) [2015] QSC 124. 
  1. The plaintiffs apply for an order that the defendants pay the plaintiffs’ costs of the application.
  1. The defendants apply for an order that the costs of the issues decided by the orders made in paragraphs 1 and 2 of the principal judgment, described as the application for an order for further disclosure, be decided so that the plaintiffs pay the defendants’ costs of the issues on which the defendants succeeded and accept that the plaintiffs should pay the costs of the issues on which the plaintiffs succeeded on this part of the application. Further, the defendants apply for an order that the costs of the application relating to order 3, described as the application to vary the confidentiality regime, be made costs in the proceeding.
  1. For the reasons that follow, in my view, the order that should be made is that the costs of the application, overall, are costs in the proceeding.

Extent of the plaintiffs’ success

  1. The plaintiffs submit that they were almost entirely successful upon the application to vary the confidentiality regime. They submit that they also achieved significant success on the application for an order for further disclosure. In both respects, there is scope for argument about the extent of the plaintiffs’ success. I do not propose to set out or recite the results of each of the disputed questions or issues in detail. That appears from the reasons for judgment on the application.

Order for further disclosure

  1. On the application for an order for further disclosure, it is sufficient to note that the plaintiff was unsuccessful upon a number of the categories dealt with because it failed to discharge the onus of showing that the defendants had breached their duties of disclosure.
  1. Although, against that, it might be said that the plaintiffs were successful on that part of the application related to the source codes, and there were many individual computer files included in the category of the source code files, that does not seem to me to tip the balance in the plaintiffs’ favour.
  1. On the other hand, the defendants’ submission that there should be separate costs of the issue relating to each of the relevant categories or groups of categories, so that the plaintiffs would succeed in obtaining an order for costs in respect of some categories and the defendants in respect of other categories seems to me to be an undesirable course. The defendants’ success on this part of the application was not so substantial that it would be unfair to the defendants for the court not to make an order for the costs of separate issues. Additionally, the defendants made no submission as to how the process of assessment would proceed sensibly in relation to the allocation of relevant costs as between issues on which one party or the other was successful.
  1. In my view, it is clearly preferable that the costs of the plaintiffs’ application for an order for further disclosure should be costs in the proceeding.

Variation of confidentiality regime

  1. On this aspect of the application, the plaintiffs submit that it was appropriate for them to apply for the variation to the confidentiality regime and that the order for access that was made extends to nearly all of the relevant documents, including documents that the defendant conceded on the hearing of the application were not confidential and documents that the court determined were not confidential. The plaintiffs further submit that the defendants resisted any change to the confidentiality regime and it was necessary, therefore, for the plaintiffs to make the application on which they succeeded.
  1. In my view, the plaintiffs overstate the extent of their success, to an extent. The plaintiffs did not succeed in obtaining the orders they sought in the application. Originally the application was brought for an order that three people be permitted to inspect the relevant disclosure documents. At the hearing of the application, the plaintiffs abandoned the application in respect of two of them, leaving only one additional person to be permitted to inspect the relevant documents.
  1. It is true that the plaintiffs were granted access to many of the relevant documents. Still, the defendants were successful in respect of some. And it is also true that the plaintiffs sought to vary the orders originally made by consent on the footing that they were made mistakenly, and the court rejected that basis of the plaintiff’s application.
  1. Another relevant factor, in my view, is that there is at least a possible inference that the defendants’ opposition to the additional access sought by the plaintiffs was too stringent, in terms of the duty to cooperate so as to proceed in an expeditious way under r 5 of the Uniform Civil Procedure Rules 1999 (Qld).  Still, I am mindful that in separating out and weighing up the elements of success or failure upon the hearing of this part of the application, value judgments as to which of those factors should be regarded as more important are made with the benefit of hindsight that can suggest a clarity not necessarily apparent to those conducting the litigation on either side at the time when the relevant decisions were made and so I do not draw that inference.

Conclusion

  1. Having regard to the circumstances overall, in my view, the court is not in a position to form a clear or firm view about an order for costs which would favour one party or the other on the respective parts of the application, except to say that if separate orders were made the defendants would be likely to succeed on the substance of that part of the application concerned with the order for further disclosure whilst the plaintiffs would be seen to have been more successful on that part of the application concerned with the order for variation of the confidentiality orders. Overall, in my view, the appropriate order for costs is that the costs of the application are costs in the proceeding.
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Editorial Notes

  • Published Case Name:

    Integrated Medical Technology Pty Ltd and Anor v Gilbert and Ors (No 3)

  • Shortened Case Name:

    Integrated Medical Technology Pty Ltd v Gilbert (No 3)

  • MNC:

    [2015] QSC 133

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    11 Nov 2015

Litigation History

No Litigation History

Appeal Status

No Status